Behaviour which amounts to harassment of any kind may be misconduct, so it should be investigated by the employer even if the employee does not want to pursue a personal grievance or complaint to the Human Rights Commission.
Employees are protected from sexual and racial harassment in the workplace under the Employment Relations Act 2000 and the Human Rights Act 1993.
Sexual and racial harassment
These types of harassment are covered by both the Employment Relations Act 2000 and the Human Rights Act 1993. If a person can’t resolve the problem with their employer they have a choice as to which way they go to take it further (they can’t do both). If the person wants to raise a personal grievance under the Employment Relations Act 2000, they have 90 days to raise it. If they want to complain under the Human Rights Act 1993, they have 12 months after the incident to make their complaint to the Human Rights Commission.
An employee is sexually harassed if their employer (or a representative of their employer):
- asks the employee for sex, sexual contact or other sexual activity, with a:
- promise (it can be implied) of better treatment in their employment, or
- a threat (it can be implied) either of worse treatment or about current or future job security
- subjects (either directly or indirectly) the employee to behaviour that they don’t want or is offensive to them (even if they don’t let the employer or the employer’s representative know this) and which either is so significant or repeated that it has a negative effect on their employment, job performance or job satisfaction:
- by using (in writing or speaking) sexual language, or
- by using sexual visual material (eg pictures, diagrams, photos, videos, etc), or
- through sexual physical behaviour.
Sexual harassment can happen to and by someone of any sex. It can be subtle or more obvious.
Whether a behaviour was sexual harassment is viewed objectively, considering whether the conduct was unwelcome or offensive, from the perspective of the complainant.
Examples of sexual harassment:
- personally sexually offensive comments
- sexual or smutty jokes
- unwanted comments or teasing about a person's sexual activities or private life
- offensive hand or body gestures
- physical contact such as patting, pinching or touching
- provocative posters with a sexual connotation
- persistent and unwelcome social invitations (or telephone calls or emails) from workmates at work or at home
- hints or promises of preferential treatment in exchange for sex
- threats of differential treatment if sexual activity is not offered
- sexual assault and rape.
An employee is racially harassed if the employee's employer (or a representative of their employer) uses language (written or spoken) or visual material, or physical behaviour that directly or indirectly:
- expresses hostility against, or brings the employee into contempt or ridicule, because of their race, colour, or ethnic or national origins of the employee, and
- this is hurtful or offensive to the employee (even if they don’t let the employer or the employer’s representative know this) and
- it is so significant or repeated that it has a negative effect on their employment this has a detrimental effect on the employee's employment, job performance or job satisfaction.
The person doing the harassment doesn’t have to be intending to racially harass for the behaviour to be racial harassment, it depends on how the person the behaviour impacts is affected by the behaviour.
Examples of racial harassment:
- making offensive remarks about a person's race
- copying or making fun of the way a person speaks
- making jokes about a person's race
- calling people by racist names
- deliberately mispronouncing or mocking people's names.
Sexual or racial harassment by customers or clients of the employee’s employer
This harassment is also covered by the Employment Relations Act 2000 and the Human Rights Act 1993. If a customer or client of their employer subjects an employee to the behaviour, then the employee should complain to their employer in writing. The employer has to investigate and if they decide that the behaviour happened, they have to take whatever steps are practicable to stop it happening again. If harassment does happen again, and the employer hasn’t taken the practicable steps then:
- the employer will be in breach of the Human Rights Act 1993 and the employee could complain to the Human Rights Commission, or
- the employee could bring a personal grievance.
Other forms of harassment
General harassment could include any unwanted and unjustified behaviour which another person finds offensive or humiliating and because it is serious or repeated it has a negative effect on the person’s employment, job performance or job satisfaction.
Specific protection from other forms of harassment at work isn’t included in legislation, but if an employee is subjected to another form of harassment, they may be able to bring a personal grievance, for example, if
- other forms of harassment are included in workplace policies or employment agreements, or
- the harassment leads to unjustified disadvantage or constructive dismissal.
Other forms of harassment may be bullying if they are repeated.
Examples of other forms of harassment:
- comments or behaviour that express hostility, contempt or ridicule, repeated put-downs for people of a particular age, body shape, gender identity etc
- a general work atmosphere of repeated jokes, teasing, or ‘fun’ at someone else’s expense because of a particular characteristic they have.