Sexual harassment: does the frequency of harassment matter to the Courts?

HRM investigates how the New Zealand Courts and ERA treat sexual harassment cases when the incidents of harassment are isolated or irregular.

Sexual harassment: does the frequency of harassment matter to the Courts?
A US employee has sued her employer for a hostile work environment after she was sexually harassed by a manager at one of the multi-work sites she worked at. Her employer countered that she had no case as she wasn’t consistently harassed. But does that argument stack up and how would such a case such play out in the New Zealand legal system?

The US Case
Lisa Dahlke worked as a part-time banker for a bank with several locations, moving from location to location as needed.
She claimed that Jason Golembiewski, her manager at one of the branches she occasionally worked at, began harassing her and other female employees. According to Dahlke, Golembiewski: twice removed her from the work schedule at his office at the last minute, once saying she was “not good enough to make my tea”; referred to female employees as “b—–s” and “old ladies,” and called Dahlke “old hag,” “prude” and “dummy”; and told someone on the phone in a loud voice that he was a “pimp” and the female employees in the office were “prostitutes in his stable” who had to do what he said.
Dahlke claimed she complained to her direct supervisors about his behaviour, but nothing was done. She was eventually fired and sued her employer for a hostile work environment.
The bank said she had no case as she only worked at the branch occasionally, so she couldn’t claim that the harassment was severe or pervasive. However, the court ruled that being consistently sexually harassed at one of her work sites was sufficient – especially when other female employees’ complaints were taken into account.

What would happen in New Zealand?
Minter Ellison Rudd Watts employment law specialist, Jennifer Mills, told HRM she would expect the Employment Relations Authority or Employment Court to come to a similar conclusion.
Under New Zealand law, sexual harassment in this context would fit under the second part of our sexual harassment definition, where the employer, or a representative of the employer, subjects an employee to unwelcome or offensive behaviour, by the use of sexual language, visual material or physical behaviour that has a detrimental effect on the employee’s employment, job performance or job satisfaction.
“While it is expected that conduct must be more than trivial in order to have the required “detrimental effect” on the employee, as long as the conduct complained of fits within that definition, then there is no requirement that the conduct be repeated or regular in order to constitute sexual harassment,” Mills said.
“Put simply, harassment is harassment – if an incident of sexual harassment meets the statutory definition, the Authority and Courts will consider it sexual harassment, regardless of whether an employee only spends brief amounts of time at the employer’s various worksites.” 
Tips for HR
While monitoring and managing workplace bullying and harassment is made increasingly difficult by increasing trends for employees to work remotely and flexibly between a number of different company sites, Mills recommends the following tips to ensuring it is done right:
  • Have consistent and clear harassment and bullying policies in place, especially in terms of the expected standards of behaviour.
“It is confusing for employees if one standard is applied at one location and another standard at another,” Mills said. “Such discrepancies can also give rise to issues in disciplining employees for bullying or harassment, with employers being expect to treat like cases alike.”
  • Ensure the standards are clearly and regularly communicated to both employees and managers. This can be done through induction training, regular employee training, specific management training, informal employee/manager feedback and manager behavioural modelling. It is important to ensure that the messages provided as part of the information and training process are consistent across each of the employer’s locations.
  • Establish a culture where it is clear that bullying and harassment are not tolerated, that employees are able to complain if managers or other employees behave in a way that makes them uncomfortable and that any such complaint will be treated seriously. 
“It is important that employees are aware that there are a number of mechanisms that an employer can explore to resolve a situation of bullying and harassment (with dismissal of the alleged harasser not being the only option available),” Mills added. “Facilitation, training, mentoring or monitoring can be effective in controlling a situation and employers with a number of locations will often have increased flexibility to put in place a transfer, whether on a temporary or a permanent basis, as another potential mechanism for resolving the situation.”     

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