However, what happens if a person in a bar is harassed by a customer, or a teacher working in a school is harassed by a student?
First, under the Equal Opportunity Act 1984 (the Act) sexual harassment can take many forms including, but not limited to:
- Unwelcome physical touching, hugging or kissing
- Staring or leering at someone or at parts of their body
- Suggestive comments or jokes
- Insults or taunts based on sex
- Sexually explicit pictures, emails, or text messages
- Intrusive questions about a person’s private life or body
Under s24 of the Act it is unlawful for a person to sexually harass an employee of that person or (of) another person.
This would open the argument that the customer is a person, the worker is an employee of the bar or shop, so if a customer harasses the worker, that customer is arguably a ‘person’ harassing an ‘employee’ of another person.
If a customer in a bar, or shop sexually harasses a person working in the bar or shop, then the worker should report this to their manager or employer.
If the concerns are then ignored and the matter is not dealt with, then the worker may have an arguable complaint against their employer and manager under s160 of the Act for permitting the unlawful act, in this case sexual harassment, to occur.
These provisions of the Act may also apply for teachers and students.
Under s24 of the Act, a student is a person, and a teacher is an employee of another person. In the same way as the bar or shop worker might be sexually harassed by a customer, the teacher may have an arguable complaint against the student for harassing them.
Under s160 of the Act, if a teacher is being sexually harassed by a student and the teacher reports it to the principal, or the perhaps the Department of Education, and it is ignored, the teacher may have an arguable complaint against the principal and the Department.
In addition to employment, sexual harassment in education is also unlawful, so a teacher harassing a student is unlawful.
Complaints of sexual harassment lodged at the Commission mostly follow a similar narrative to the Fraser-Kirk and McInnes scenario which is a colleague in a position of power harassing a subordinate colleague.
However, this is not always the case, and we must be mindful the effects of sexual harassment, however and wherever it occurs, can be extremely traumatic for the person being harassed and can have consequences for the harasser.
*Kirsty Fraser-Kirk’s against David Jones and its CEO Mark McInnes
