Employer liability for third‐party sexual harassment

This paper analyses the different approaches of the Employment Relations Act 2000 and the Human Rights Act 1993 as to whether sexual harassment of one coworker by another occurs as a part of the employment relationship. It examines the Court of Appeal and the Human Rights Review Tribunal regarding the liability of the same person (Smith) for sexual harassment. The Court of Appeal upheld Smith’s dismissal as it impacted on his employment relationship, while the Human Rights Review Tribunal held Smith’s behaviour was not in the in the course of his involvement in employment. Reasons for the difference between the two decisions are examined, looking in particular at employer liability for the actions of coworkers, and the different ways the two Acts deal with such liability. Canadian and Australian approaches to employer liability are examined, noting consistency between the approaches in their human rights and employment legislation. It is suggested that inconsistencies between the Employment Relations Act and the Human Rights may lead to different outcomes regarding employer liability. Finally it is suggested that, given the differences between the two Acts, it would be better for matters of sexual harassment to only be dealt with under the Human Rights Act.

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How Do People Perceive Sexual Harassment Targeting Transgender Women, Lesbians, and Straight Cisgender Women?

10.31234/osf.io/pq9wn ◽

2021 ◽

Author(s):

Jennifer Mezzapelle ◽

Anna Reiman

Keyword(s):

Sexual Orientation ◽

Sexual Harassment ◽

Gender Identity ◽

Transgender Women ◽

Third Party ◽

Gender Harassment ◽

Lesbian Woman ◽

Specific Behavior ◽

Male Colleague ◽

And Gender

Third-party observers’ opinions affect how organizations handle sexual harassment. Prior research has focused on perceptions of sexual harassment targeting straight cisgender women. We examined how targets’ sexual orientation and gender identity impact these perceptions. In three preregistered studies, straight cisgender participants imagined a coworker confided that a male colleague had sexually harassed her. The target was a transgender woman, a lesbian woman, or a woman whose sexual orientation and gender identity were unspecified. In Study 1 (N=428), participants reported believing that sexual harassment targeting lesbians and women with unspecified identities was most likely motivated by attraction and power, whereas sexual harassment targeting transgender women was seen as most likely motivated by power and prejudice. Despite these differences in perceived motivation, in Study 2 (N=421) perceptions of appropriate consequences for the perpetrator did not vary based on the target’s identity. Study 3 (N=473) demonstrated that the specific behavior of which sexual harassment is assumed to consist differs based on the target’s identity. Whereas women with unspecified identities and lesbians were assumed to face stereotypical attraction-based harassment, transgender women were assumed to face gender harassment. Stereotypes about sexual harassment can bias third-party assumptions, invalidating experiences that do not match pervasive stereotypes.

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