Employers focus a lot on sexual harassment. This is largely due to its prevalence and the impact it can have on an organisation. The Australian Human Rights Commission conducted a national survey in 2012 which found that, over the previous five year period, one in four women and one in six men were sexually harassed in the course of their employment. It is understandable that there are many questions about sexual harassment that are often left unanswered.¹

In terms of the impact on an organisation, sexual harassment can lead to:

• emotional and physical damage;
• a hostile working environment;
• criminal liability;
• vicarious liability; and
• public scrutiny.

Given the focus on sexual harassment and our knowledge about its impact, what are the questions we have always wanted to ask, but were too afraid?

Questions about sexual harassment: Appearance, dress and personality, do they lead to sexual harassment?

It is not uncommon in discussions around allegations of sexual harassment to hear phrases such as “did you see what he or she was wearing” or “but they never said they didn’t like it”.

The case law tells us that while a person’s appearance, dress, personality or conduct may be factors that are considered when allegations of sexual harassment arise, they will not ultimately determine whether a finding of sexual harassment is made. What needs to be determined is whether the perpetrator’s conduct amounted to sexual harassment. The legal elements of sexual harassment are not based on how the alleged harasser saw the situation or the factors that influenced his or her views.

For example, in Collins v Smith (Human Rights) [2015] VCAT 1029, an alleged change in the victim’s behaviour, and a suggestion that by continuing to place herself in close proximity to the perpetrator (including requesting meetings with him after hours), the victim had herself engaged in behaviour that was not consistent with the conduct she alleged against the perpetrator, were addressed. While accepted as relevant considerations, it was noted that “it is not appropriate to criticise the employee on the basis that she should have handled the sexual harassment better or should have stormed out of the room or escaped from the harasser earlier”.

Further, in Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC, the defendant’s submissions sought to criticise the plaintiff’s credit and focussed on what the Court considered to be irrelevant matters. These centred around the perpetrator’s after hours visits to the complainant’s home for business purposes and a suggestion that she was shown in photographs (taken at the home) to have been wearing a short dress well above knee height.

Questions about sexual harassment: Can a customer or client sexually harass an employee?

If you walked into most workplaces today, you would find policies and procedures around discriminatory behaviour and sexual harassment by employees. But you are far less likely to find policies and procedures that address situations and potential liability where a customer or client acts in a discriminatory or harassing manner towards an organisation’s employees.

Under the Sex Discrimination Act 1984 (Cth) (“SD Act”) it is unlawful for any person to sexually harass another in the course of seeking or receiving the provision of goods, services or facilities from another person. This creates an obligation on a customer or client to refrain from sexually harassing employees. Additionally, employers who “cause, instruct, induce, aid or permit” another person to do an act that is unlawful under the SD Act may be found liable for the conduct.

This means that if an employer has knowledge of sexually harassing behaviour by a customer or client that affects their employees and does not take all reasonable steps to stop that behaviour, then it may be “permitting” the person to engage in acts that are unlawful under the SD Act.

Questions about sexual harassment: Personal relationships at work – how should they be treated?

In recent months we have seen a number of media headlines commenting on office romances, for example, when the Seven Network sought an urgent court order in the New South Wales Supreme Court to stop a former executive assistant disclosing details about her relationship with the company’s CEO, and the QBE CEO forfeiting part of his STI bonus for delaying the disclosure of a personal relationship with an employee.

In the Seven Network proceedings, while much of the media attention (and also the comments on social media by the former executive assistant) centred around the office romance, there was no judicial comment about an employer’s role relating to work colleagues conducting a consensual, personal relationship.

However, what the Fair Work Commission has recently said about an employer’s ability to govern personal relationships at work is as follows:

“Employers cannot stop their employees forming romantic relationships. However, in certain circumstances, such relationships have the potential to create conflicts of interest. This is most obviously the case where a manager forms a romantic relationship with a subordinate especially where the manager directly supervises the subordinate. It is virtually impossible in such circumstances to avoid at the very least the perception that the manager will favour the subordinate with whom they are in a romantic relationship when it comes to issues such as performance appraisals, the allocation of work, and promotional opportunities”.

Further

“Employers have a reasonable expectation that employees will disclose any potential conflicts of interest, so that they can be appropriately managed”.

So, how do organisations ensure that personal relationships are adequately addressed and do not negatively impact upon the organisation and its working relationships?

While unlikely to be adopted in Australia, in the United States, it is common for employers
to require workers to disclose any intimate relationships with colleagues. This often involves entering into a written agreement commonly called a “love contract”. This “love contract” usually contains:

• an acknowledgment that the relationship is consensual;
• what happens if the relationship ceases to be consensual;
• an acknowledgment that the employees are aware of the company’s policies on sexual harassment and workplace ethics; and
• an understanding of the consequences of failure to follow those policies.

What is more commonplace in the Australian employment environment is a conflict of interest policy or something similar, which details occasions when personal relationships must be disclosed.When considering a conflict of interest policy and addressing personal relationships at work, employers need to address questions such as:

• what constitutes an “office romance”?;
• when must an “office romance” be disclosed?;
• will the policy address “affairs”?;
• what confidentiality mechanisms will be in place?;
• what disciplinary action will be enforced (if any) for a failure to disclose?; and
• is there going to be a blanket rule against “office romance”?

It seems that consideration of personal relationships by employers will become more and more prevalent as survey data shows that almost 85% of 18 – 29 years old would engage in a romantic relationship with a co-worker.²

Do I have an obligation to report?

Under section 316 of the Crimes Act 1900 (NSW) (“Crimes Act”) if a person has committed a “serious indictable offence”, and another person, who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension, prosecution or conviction of the offender, fails without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority, that other person is liable to imprisonment for up to two years.

A serious indictable offence is one for which a person may be imprisoned for five years or more, for example, sexual assault. When considering sexual harassment, consideration must therefore be given to whether the organisation needs to bring findings of sexual harassment (that amount to sexual assault) to the attention of the police or other appropriate authority.

What is key to determining this obligation is having “knowledge or belief” that the offence has been committed. Belief is not defined by the Crimes Act, but has been considered to be
a state of mind which can be reached as the result of a mix of knowledge which an offender has come to possess, as well as suspicions and opinions which he or she has come to hold and conclusions which he or she has reached. It therefore follows that under section 316, what must be established is that the person actually came to hold the alleged belief. The obligation does not apply to mere suspicion of an offence.³

1. Working without fear: Results of the 2012 sexual harassment national telephone survey, Australian Human Rights Commission, 2012
2. Millennials More Likely to be Smitten with Superiors, Co-Workers, Workplace Options, 2012, http://www. workplaceoptions.com/polls/millennials-more-likely-to- be-smitten-with-superiors-co-workers-2/
3. Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458