Legal View: Sexual Harassment in Hospitality

DON’T LOOK AT ME THAT WAY!

SEXUAL HARASSMENT IN THE HOSPITALITY INDUSTRY

With the #MeToo movement all around us globally, there’s a heightened awareness of sexual harassment in the workplace, or at least there should be. In the hospitality industry, harassment of all kinds is a regular occurrence, unfortunately, and, where’s there’s the supply of alcohol, employees are not only in danger of being exposed to sexual harassment from their colleagues, but also customers. By Walter MacCallum, a director at Aitken Lawyers in Sydney and a regular contributor

According to a 2017 survey, conducted by the hospitality branch of the Australian workers union, United Voice, it was found that not only had 89% of respondents been sexually harassed in the workplace, but also 19% had been sexually assaulted at some point in their career.

As shocking as these figures appear, it is no surprise that employees, some of which work within an alcohol-fuelled environment, are subjected to this. The #MeToo movement has not only shined a light on sexual harassment, but has also provided employers with a golden opportunity to bring about change in their workplaces and to be proactive about providing a safe workplace for their employees.

So, what is sexual harassment? We tend to associate sexual harassment with unwanted physical intimacy, but it doesn’t stop there. The Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (NSW), define sexual harassment as including an unwelcome sexual advance, an unwelcome request for sexual favours or engaging in other unwelcome conducts of a sexual nature in circumstances where a reasonable person would believe that the subject of such harassment would be offended, humiliated or intimidated by that conduct.

The legislation goes further by defining “conduct of a sexual nature” to include the making of a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Basically, sexual harassment is not just physical, it can also be verbal and non-verbal, and importantly, you do not need to be on the receiving end of it to be a victim. In some cases, such conduct need only occur in your presence.

We’ve all probably seen in the hospitality environment colleagues and clients often engaging in the telling of sexual jokes or stories, cat calling or whistling, asking personal questions, making sexual comments about an individual’s appearance or clothing, repeatedly asking an individual to go out on a date, telling lies or spreading rumours about someone’s personal sex life, or even using nicknames like ‘babe’, ‘hunk’, or ‘honey’.

Sexual harassment may also come in the form of non-verbal actions that make you feel uncomfortable, such as elevator eyes (looking you up and down), blocking your path, giving personal gifts, displaying sexually suggestive visuals, making sexual gestures with hands or through body movements, or even facial expressions such as winking, licking lips and throwing kisses.

In 2017, the Queensland Civil and Administrative Tribunal found that a prank, where a room was faked up so it looked like there had been a sex romp by two colleagues, amounted to a case of sexual harassment made against the employee who found the room in that state.

Often this conduct is played off as ‘being in good fun’; ‘only having a joke’; or that ‘he/she found it funny too’. However, it is important that employees know that if the recipient considers the behaviour to be unwelcome, even if they went along with it, there may be enough to fall within the definition of sexual harassment.

This is not to say that such actions will always be sexual harassment, it will depend on the circumstances.