It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment.
Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour.
The fact that two individuals have been in a consensual sexual relationship does not mean that sexual harassment may not occur following the end of the relationship.
Example: A young employee and her boss engaged in consensual sexual intercourse on four occasions. The woman’s boss engaged in a range of other conduct of a sexual nature. A court found some of this was welcome. However, the court also found that certain acts – including giving the woman gifts of a sexual nature, such as underwear, sending explicit text messages and attempting to share a bunk bed – was unwelcome sexual harassment.
An unwanted request to go out on a date can also be sexual harassment.
Example: An employee in a small food company said the owner repeatedly asked her out, as well as frequently kissing her on the cheek and commenting on her looks. This could be sexual harassment.
Sexual harassment in the workplace is against the law. A person who sexually harasses someone else is responsible for their behaviour. However, employers can also be liable for the actions of their employees. This is called ‘vicarious liability’.
Employers should ensure that they address all complaints of sexual harassment with care.
They should also ensure that sexual conduct between employees, even if it is consensual, does not create an unpleasant and sexualised workplace for others.