Sex­u­al harass­ment in sup­port­ed employ­ment — Risks for employ­ers and how to min­imise them

In Brief

Christ­mas is the sea­son for many things, includ­ing inap­pro­pri­ate behav­iour in the work­place. Employ­ers need to be aware that sex­u­al harass­ment claims can result from actions which spring from the best inten­tions. What one per­son con­sid­ers to be friend­ly behav­iour can be seen by oth­ers as offen­sive and inappropriate.

A recent deci­sion of the Vic­to­ri­an Civ­il and Admin­is­tra­tive Tri­bunal (VCAT) has high­light­ed poten­tial dan­gers for employ­ers of sex­u­al harass­ment claims aris­ing in work­places pro­vid­ing sup­port­ed employment.

Sam­mut v Dis­tinc­tive Options Lim­it­ed [2010] VCAT 1735

The com­plainant was a six­ty-two year old man employed by a not-for-prof­it organ­i­sa­tion, Dis­tinc­tive Options Lim­it­ed (DO), which pro­vid­ed sup­port­ed employ­ment for peo­ple with acquired brain injuries and oth­er disabilities.

DO had what it described as a ​“hug­gy” work­place cul­ture, with employ­ees often giv­ing each oth­er hugs as a ges­ture of sup­port and goodwill.

It was well known with­in the organ­i­sa­tion that the com­plainant did not like to be touched because he felt that this would jeop­ar­dise his rela­tion­ship with his wife. The com­plainant even had a nick­name to this effect, ​“Col­in who does not like to be touched”.

This rep­u­ta­tion in the work­place arose from his com­plaints to oth­er staff about a female col­league who repeat­ed­ly hugged him in a man­ner which was described by a for­mer employ­ee as ​“inti­mate hugs – like a woman gives a man”.

Although the com­plainant did not lodge a for­mal com­plaint with DO at the time, it was made clear to the col­league on a num­ber of occa­sions that this phys­i­cal con­tact was unwel­come. Nev­er­the­less, the col­league per­sist­ed with this behav­iour and was not deterred until the com­plainant told her to stop in front of anoth­er employee.

Some time after this series of events, the col­league observed the com­plainant with con­fi­den­tial employ­ee infor­ma­tion and informed anoth­er employ­ee, who report­ed the mat­ter to man­age­ment. Fol­low­ing an inves­ti­ga­tion into the mat­ter, the com­plainant was dismissed.

Claim of sex­u­al harassment

The com­plainant alleged under the Vic­to­ri­an Equal Oppor­tu­ni­ty Act 1995 that the col­league had sex­u­al­ly harassed him and that DO was vic­ar­i­ous­ly liable for this harass­ment. The com­plainant sought dam­ages for humil­i­a­tion, pain and suffering. 

Accord­ing to VCAT, the cen­tral issues in the mat­ter were whether the con­duct con­sti­tut­ed sex­u­al harass­ment and, if so, whether DO should be held vic­ar­i­ous­ly liable for such harassment.

Did the con­duct con­sti­tute sex­u­al harassment?

VCAT sum­marised the rel­e­vant law regard­ing sex­u­al harass­ment in terms of a three-part test:

• The con­duct of the harass­ing employ­ee must be unwel­come by anoth­er employee.
• The con­duct must be sex­u­al in nature, where­by it is either an unwel­come sex­u­al advance; an unwel­come request for sex­u­al favours; or oth­er unwel­come con­duct of a sex­u­al nature.
• The con­duct must occur in cir­cum­stances in which a rea­son­able per­son hav­ing regard to all the cir­cum­stances would have antic­i­pat­ed that the oth­er per­son would be offend­ed, humil­i­at­ed or intimidated.

In apply­ing this test to the con­duct of the complainant’s col­league, VCAT first­ly found that the evi­dence of the com­plainant and the for­mer employ­ee clear­ly demon­strat­ed that the con­duct was unwel­come, as the com­plainant had told the col­league to desist on a num­ber of occa­sions and had a rep­u­ta­tion in the work­place for not lik­ing to be touched.

Fur­ther, as the EO Act pro­vides that con­duct of a sex­u­al nature includes ​“sub­ject­ing a per­son to any act of phys­i­cal inti­ma­cy”, the evi­dence adduced of the phys­i­cal­ly inti­mate hugs clear­ly estab­lished the sec­ond part of the test.

In rela­tion to the final part of the test, DO sub­mit­ted that no rea­son­able per­son would have viewed the con­duct as offen­sive and that the EO Act was not designed to address such triv­i­al­i­ties or to ster­ilise work­places from harm­less dis­plays of care and respect between colleagues.

VCAT reject­ed these sub­mis­sions and found that the con­duct was nei­ther triv­ial, nor a harm­less dis­play of care and respect. A high­ly influ­en­tial fac­tor for this find­ing was the complainant’s stat­ed view that the colleague’s behav­iour would jeop­ar­dise his rela­tion­ship with his wife. This fact, togeth­er with the phys­i­cal­ly inti­mate nature of the hugs and the complainant’s rep­u­ta­tion for not lik­ing to be touched, led to the find­ing that a rea­son­able per­son would have antic­i­pat­ed that the com­plainant would be offend­ed or humiliated.

Accord­ing­ly, it was held that the con­duct of the complainant’s col­league con­sti­tut­ed sex­u­al harass­ment with­in the mean­ing of the EO Act.

Was the employ­er vic­ar­i­ous­ly liable for the sex­u­al harassment?

Under the EO Act, an employ­er is vic­ar­i­ous­ly liable for sex­u­al harass­ment engaged in by one of its employ­ees against anoth­er employ­ee unless it takes rea­son­able pre­cau­tions to pre­vent the contravention.

DO sub­mit­ted that it had tak­en such pre­cau­tions, because it had clear and detailed poli­cies and pro­ce­dures regard­ing sex­u­al harass­ment and because employ­ees had suf­fi­cient knowl­edge of these poli­cies and procedures.

VCAT found that although DO had such poli­cies and employ­ees were aware of them, this was not suf­fi­cient because DO’s man­age­ment did not under­stand the pol­i­cy prop­er­ly, did not act in accor­dance with the pol­i­cy and did not take com­plaints relat­ed to the pol­i­cy seriously.

As a result of this find­ing, VCAT found that DO was vic­ar­i­ous­ly liable for the sex­u­al harass­ment and award­ed the com­plainant $2,000.00 for humil­i­a­tion, pain and suffering.

Lessons for employ­ers pro­vid­ing sup­port­ed employment

Sup­port­ed employ­ment can present sec­tor-spe­cif­ic risks of sex­u­al harass­ment claims aris­ing. One such risk is that due to the nature of their dis­abil­i­ty, par­tic­u­lar employ­ees may fail to appre­ci­ate or under­stand that oth­ers may be offend­ed by phys­i­cal touch­ing, par­tic­u­lar­ly if it is gen­er­al­ly con­sid­ered to be part of nor­mal and accept­able behav­iour in that workplace.

Sig­nif­i­cant­ly, as this case has demon­strat­ed, the fact that hug­ging and phys­i­cal touch­ing is com­mon­place in a work­place has no bear­ing on an employee’s right to make a sex­u­al harass­ment claim or on the chances of the claim being successful.

Sex­u­al harass­ment is an issue to be tak­en very seri­ous­ly by employ­ers, because not only may they be held vic­ar­i­ous­ly liable for the actions of the harass­ing employ­ee and be required to pay com­pen­sa­tion to the vic­tim, but their rep­u­ta­tion can suf­fer. This can affect the via­bil­i­ty of the busi­ness and its abil­i­ty to attract job applicants.

It is vital for all employ­ers to imple­ment the fol­low­ing steps to min­imise the risk of such claims:

• Ensure that the organ­i­sa­tion has clear and detailed poli­cies regard­ing sex­u­al harass­ment which out­line the pro­ce­dure involved in han­dling such claims.
• Inform exist­ing staff of these poli­cies by cir­cu­lat­ing them through­out the work­place. If not all staff are lit­er­ate, ensure that the pol­i­cy is clear­ly explained to them verbally.
• Inform new staff of these poli­cies through induc­tion training.
• Ensure that man­agers and super­vi­sors have a sound knowl­edge of how the pol­i­cy works in prac­tice so that they are able to act in accor­dance with it. This is par­tic­u­lar­ly impor­tant if some employ­ees are unable to under­stand the pol­i­cy ful­ly or can­not remem­ber to abide by it.
• Take sex­u­al harass­ment com­plaints very seri­ous­ly by imple­ment­ing a thor­ough inves­ti­ga­tion, rather than rely­ing on the vic­tim to approach the harass­ing employ­ee and explain that the con­duct is unwelcome.

Addi­tion­al detailed infor­ma­tion about sex­u­al harass­ment in the work­place can be down­loaded from the web­site of the Aus­tralian Human Rights Commission.