Peter Cullen, Partner at Cullen – The Employment Law Firm, discusses the problem with the sexualisation of employees as reported in high-profile cases in New Zealand and overseas. Exploiting an employee’s physical appearance enters a grey area in New Zealand employment law, but a workplace that requires employees to wear skimpy clothing is likely to have a culture where sexual harassment can occur and the employer will be responsible for that, he writes.
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In recent weeks, the sexualisation of workers’ appearance and inappropriate workplace policies have been the focus of multiple new stories in the media. The issue of mainly women workers being exploited for their physical appearance in the workplace is not a new issue. Of course, the #MeToo movement, which aims to stamp out sexual harassment and similar inappropriate conduct, has received huge publicity over the last year or so.
Last month, Finnish farmhand Mari Vahanen was looking for work in New Zealand and posted a perfectly normal picture of herself in work clothes and explained her background in farm work on the NZ Farming Facebook page. In return she received unsolicited comments about her “hotness” and dateability and phone numbers accompanied by winking emojis, rather than genuine work offers. One commenter asked: “Would you be commenting similarly if it was a male asking for a job?”
A more serious line is crossed where employers pressure staff to dress in a particular way to entice customers. Recently a bar in Perth, Australia, issued female staff with a tighter, lower cut shirt than the men’s shirts they had been wearing. Some staff felt uncomfortable, yet the manager posted on social media that it was a condition of employment and if they were not comfortable they could find work elsewhere. The manager even tried to spin the tight shirts as a health and safety issue saying, “Baggy shirts catch on things and could cause injury in the workplace.” Interestingly, nothing indicates that he was concerned about the safety of the men still wearing those same shirts. After backlash on social media, the bar withdrew the policy and backed down.
In the United States, managers at Topshop instructed staff to wear skimpy outfits when Sir Philip Green, the owner of Topshop, visited the stores. Green allegedly also made offensive remarks about employees he believed were gay. It emerged that Green has paid employees seven figure sums to quieten allegations of sexual harassment and racism. Behaviour like this crosses many ethical lines and breaches employment law.
The concept of sexual harassment in New Zealand is fairly narrowly defined and generally requires a request for sexual activity or subjecting the worker to unwelcome or offensive behaviour. Employers are responsible for addressing such behaviour from customers, clients, and other employees. Certainly, employers should not have policies that perpetuate sexual harassment or focus on sexual appearance.
Exploiting an employee’s physical appearance enters a grey area in New Zealand employment law. Workplace presentation standards are a normal part of many professional jobs. However, when those standards are intended to sexualise the worker or entice customers, the line has been crossed. A workplace that requires employees to wear skimpy clothing is likely to have a culture where sexual harassment can occur and the employer will be responsible for that. By law, employers must provide a safe workplace, not one where workers will be objectified and harassed.
In the early 2000s, there was a high profile British case involving Carina Coleman, an investment banker in London. Coleman alleged that her employer described her as a “tethered goat”, a reference to her being used as sexual bait for wealthy clients. She argued that her lack of cooperation with this behaviour was a factor in her dismissal. Coleman won her case for unfair dismissal, yet her employer and the man accused of sexually harassing Coleman received name suppression.
A worker at the Grand Hotel in Whanganui left her employment and brought a case alleging sexual harassment against her manager for making offensive sexual comments, a supervisor for telling her to wear a t-shirt that was too small, and the behaviour of a co-worker who sent her texts, touched and brushed against her, and made comments with sexual innuendo. McKenzie lost her case because she never raised the issues with her employer before resigning. Certainly she could reasonably have expected her employer to take action on the allegations, but firstly she must raise the allegations with the employer which she failed to do.
Regardless of the limits of the law on sexual harassment, the employer has an overriding obligation to treat all of its staff fairly and reasonably and in a way that promotes trust and confidence. Failing to do that can lead to grievances, not to mention a harmful workplace culture.
The law may seem too complicated and both employers and workers may struggle to know precisely what their rights and obligations are. Appropriate boundaries and presentation standards can vary from industry to industry, but treating workers with human decency is simple and uncomplicated. It is universal that employers and workers should treat each other with respect in a way in which dignity is enhanced.
This article has been republished with the permission of Stuff.co.nz
Peter Cullen works for both employers and employees and has built upon his earlier experience gained as an industrial advocate. In 1994 Peter established his own firm, Cullen-The Employment Law Firm. Peter convened the Wellington District Law Society Employment Law Committee from its inception until 2004. He is a regular speaker and commentator to the news media on industrial law issues. Peter has represented clients before the various employment institutions including the Court of Appeal. He uses his legal skills to impart clients with helpful advice upon which to base their decisions. His strengths lie in his in-depth knowledge of New Zealand employment law and his abilities as an advocate. Contact Peter at peter@cullenlaw.co.nz. You can also connect with Cullen Law via LinkedIn
