How about an invitation back to their hotel room for drinks after dinner?
A recent case in which a magistrate’s clerk made a sexual harassment claim against a former magistrate to the Equal Opportunity Tribunal of South Australia illustrated that sexual harassment is not always easily defined.
The female clerk alleged that while she and the magistrate were travelling on circuit, he made sexual advances towards her, including inviting her to eat lunch and dinner with him, come to his room for drinks after dinner and swim in the hotel pool in her underwear.
He also told her she needed “spanking” when she made a mistake in court.
The tribunal found that some of the conduct occurred, but it wasn’t sexual in nature. Even the comment about spanking, although it was deemed inappropriate, was not considered sexual in the context of the relationship between the two of them.
Clayton Utz partner Hedy Cray said that when considering what constitutes sexual harassment, it was important to look at the conduct in the context of the totality of the relationship between the parties.
“While it may be easy to jump to the conclusion that saying someone was naughty and needed "spanking" or could swim in their underwear is sexual, the case highlights the danger of looking at a comment in isolation without context.”
Cray said that sexual harassment is generally, depending on the jurisdiction, unwelcome conduct of a sexual nature that a reasonable person would anticipate would offend, humiliate or intimidate.
“While pornographic images or solicitation for sex may be more obvious, the difficulty is that a comment which may appear suggestive or allude to sexual content in isolation may not always be what it seems. It has to be looked at in context.”
Physical conduct also has to clearly have a sexual component or overtone. While cards, flowers and gifts have all been examined, it’s the context in which they have been given and what has been said that often determines whether the line has been crossed, said Cray.
In the case of the magistrate and the clerk, the tribunal found that the conduct was not sexual because the context was plausible and non-sexual.
“It was entire matrix of events, banter and congenial relationship between the parties which was relevant. While perhaps ill-advised to use such words, even in a congenial relationship, the tribunal did find that the complainant overstated the conduct and was not a credible witness.”
Cray said that the case did not mean that the bar for sexual harassment was getting lower.
“While this case described conduct which may in isolation seem sexual, equally there are cases where non-sexual conduct has been found to be part of a course of sexual harassment.
“For example, the ruffling of a colleague’s hair, while inappropriate, may not itself appear sexual. However, where a non-sexual act occurs in the context of a broader pattern of inappropriate sexual conduct, including other forms of intimate comments and touching, it will become sexual conduct.”
Have you ever dealt with a difficult sexual harassment case?
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If your boss invites you to go swimming in your underwear, is that sexual harassment?