Employers should familiarize themselves with the Sexual Harassment Bill that the Government has published. It clarifies the definition of sexual harassment, the requirement for implementing sexual harassment policies, how complaints of sexual harassment may be made, and the possible liability to be faced by employers.
Definition of sexual harassment
According to the Sexual Harassment Bill, a person commits an act of sexual harassment against another person if various factors are proven.
First, the following will be taken into account:
the sex, age, relationship status, sexual preference, gender identity, religious belief, colour, nationality, or ethnicity of the person alleging sexual harassmentthe relationship between the person alleging sexual harassment and the person who is alleged to have engaged in the act of sexual harassment any disability of the person alleging sexual harassment
Second, the following types of scenarios involving a person’s conduct will be considered:
making an unwelcome sexual advance towards a person or request for sexual favours from a person or sexual comment to a person or sexual comment about a person within the person’s hearing or sexual gesture to a person or sexual contact with a person, or sexual innuendos to a personproviding a person with unwelcome sexual images or graphics, or audio of a sexual naturetransmitting unwelcome electronic messages of a sexual nature to a personmaking it appear to the person seeking employment that the offer of employment to that person or the terms on which employment is offered are contingent on that person’s acceptance of or submission to sexual advances from the prospective employer
Third, a determination will be made whether it is reasonable for the person alleging sexual harassment to conclude that the conduct was directed towards the person alleging sexual harassment and was calculated to:
offend, humiliate, disrespect or degrade the person alleging sexual harassmentintimidate, threaten, or compel the person alleging harassment by putting the person alleging harassment in fear of being placed at a disadvantage or prejudiced if the person alleging sexual harassment does not submit to the sexual harassmentcreate a hostile environment for the person alleging sexual harassment or violates their dignity
Complaints
A person who alleges that the person has been subjected to sexual harassment or another person is engaging in or has engaged in sexual harassment may file a written complaint with the Gender Equality Tribunal setting out the details of the alleged sexual harassment.
This complaint must generally be made within eighteen months from the date of the alleged act of sexual harassment to which the complaint relates and, in the case of a series of acts of sexual harassment, within eighteen months from the date of the last alleged act of sexual harassment was committed.
Some of the orders that can be made by the Tribunal under the current draft of the Sexual Harassment Bill are as follows:
that the respondent not repeat or continue the sexual harassmentthat the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainantthat the respondent shall pay damages to the complainant by way of compensation not exceeding twenty thousand dollars for any loss or damage suffered by reason of the conduct of the respondentthat where the complaint relates to sexual harassment by a fellow employee, that the employer shall take appropriate action to ensure that the sexual harassment ceases and to report to the Tribunal, within a specified time period, on the action taken
Liability
Concerning liability that employers may face, they could be held liable for an act of sexual harassment committed by their employees and agents only if it is proven that:
the conduct occurred during the course of employment with the employer or on the employer’s premises andthe employer knew, ought reasonably to have known, or was informed of the commission of such conduct and, on becoming aware, suspicious, or informed, failed to take immediate and reasonable action to prevent the continuation of the conduct
Due to the potential liability, the Sexual Harassment Bill requires every employer to issue a policy statement in writing concerning the prevention of sexual harassment and the protection of an employee in the workplace and bring the policy statement to the attention of all employees by publishing the statement in a manner which would reasonably allow an employee and third party to become aware of the policy. Failure by an employer to do this will be deemed an offence, and the employer will be liable on summary conviction to a fine of five thousand dollars.
Public consultation
According to information on the Government’s website, the Sexual Harassment Bill is currently in the public consultation phase.
Comments may be emailed to [email protected] with the subject heading: Sexual Harassment Bill Public Consultation 2023.
Unless extended, it appears that the deadline for comments is April 15, 2023.
Parliament will then discuss the Sexual Harassment Bill and determine whether it will become the law of the land.
In the meantime, members of the public are encouraged to complete a sexual harassment survey accessible using the following link: https://www.surveymonkey.com/r/WLY5HCQ.
