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Dealing with your own Harvey Weinstein at work

Date: 25/10/2017

This is a story about one man’s massive plummet from grace into absolute disgrace. On 5 October 2017, the New York Times broke a story about Hollywood mogul Harvey Weinstein paying off sexual harassment accusers for decades.

Since then, more accusers have come forward to level allegations against Weinstein, who has now been expelled from the Academy of Motion Picture Arts and Sciences and fired from the company he co-founded.

That the allegations of sexual harassment against Weinstein have only now come to light after being buried for decades is indicative of the difficulty that victims face when raising allegations of this nature. Many of the women abused by Weinstein are strong and successful in their own right, but held back from reporting the offending until recently.

In New Zealand, employees are protected from sexual harassment under the Employment Relations Act 2000 and the Human Rights Act 1993. The legislation defines sexual harassment as including situations where someone asks another person for sex, sexual contact or some other sexual activity with a promise of better treatment or a threat of worse treatment. Notably, a threat or promise can be implied, and therefore does not necessarily need to be explicit.

Sexual harassment also includes the use of sexual language, visual materials or physical behaviour which is unwelcome or offensive and which is either repeated or of such a significant nature that it has a detrimental impact on the recipient.

Despite the legislative protections afforded, there exist barriers to raising allegations of sexual harassment, which means it is often not called out. This includes, as Vox reported recently, “shame, fear and cultural norms”.

A recent study in the US showed that approximately 75 percent of all workplace harassment incidents go unreported altogether. Another study showed that 75 percent of employees who did speak out against workplace mistreatment faced retaliation.

In a recent example, an Australian journalist alleged that she was dismissed after making a complaint of sexual harassment by an older male reporter. While her employer denied that this was the reason for her dismissal, it is symptomatic of the possible consequences women face when raising complaints of this nature.

This is particularly true where the offending is by a superior against a subordinate. As sexual harassment can include implied threats of adverse treatment, employees may feel pressure to go along with a relationship or event out of fear of adverse consequences should they say no.

When it comes to the meeting the test under the Employment Relations Act or Human Rights Act, complainants can face difficulty in proving that there was a “detrimental impact”. This was the case in B v NZ Amalgamated Engineering Union Inc, where the complainant alleged that the grievant took hold of her shoulders, drew her towards him, and kissed her on the head.

While the Tribunal found that this was physical behaviour of a sexual nature, and that it was unwelcome or offensive to the recipient, it was not of a “significant degree…that it had a detrimental effect on the complainant’s employment”. Although the complainant had suffered emotional distress, this was not held to be enough, as there was no evidence her job performance or job satisfaction suffered.

In another case, Fonokalafi v Carter Holt Harvey Ltd, an employee’s statement to a colleague, “where were you, I was waiting in my car playing with myself”, was found to be of a sexual nature and unwelcome but not detrimental to the complainant. However this outcome was influenced by the fact that the complainant subsequently withdrew her complaint and then stated that the defendant was a great person to work with.

So, what are the options for employees who face this sort of treatment in the workplace? In the first instance, it may be possible to deal with the behaviour informally, especially where an offending employee may not realise they are being offensive.

If the behaviour continues or is of a serious nature, or the victim is not comfortable raising it directly with the perpetrator, then employees are encouraged to make a formal complaint. Some workplaces have detailed policies for dealing with sexual harassment, but regardless of whether the policies exist, employees should let their employer know as soon as possible. This can be through their manager, an HR person, a union representative or lawyer. It always helps to have a detailed record of the incidents which form the basis of the complaint.

Employers have an obligation to maintain a safe working environment for their employees, and this includes an environment free from harassment. Following an investigation into a complaint of sexual harassment, the complainant should be told whether or not the complaint has been upheld, what action is to be taken and by when.

If an employer fails to sufficiently address the complaint, an employee may make a claim to the Human Rights Commission, or raise a personal grievance.

While our laws afford employees these protections, the allegations against Harvey Weinstein, and in particular the length of time they remained unreported, show that they only go so far.