#MeToo – NZ style

15 Dec, 2020 by Barry 11 Comments

Sexual harassment is all too common, and yes, it also happens in Aotearoa New Zealand too. And just as in the rest of the world, women are by far more likely to be harassed than men. Regardless of gender, it requires a lot of courage for a victim to seek redress for any form of harassment, but particularly when it is of a sexual nature.

In this country it is slightly easier than in many other jurisdictions to seek redress as the Human rights Commission will often represent a plaintive in court through the office of the Director for Human Rights Proceedings.

In a recent case, the Director for Human Rights Proceedings represented a woman in a sexual harassment hearing before the Human Rights Review Tribunal where the woman was awarded a six-figure sum for sexual harassment that occurred in the course of her employment. Unfortunately, most of the details of the case have been hidden behind a confidentiality agreement so it’s unlikely that we’ll ever know the full details.

What makes this case unusual is that the value of the payout is large by New Zealand standards, but it does show an increasing intolerance by the courts towards sexual harassment. Perhaps more unique is the nature of the woman’s employment, and although similar cases have been successful in this country, her job would preclude such a case being brought before the courts at all in most other jurisdictions.

According to an article in the New Zealand Herald:

A sex worker awarded a six-figure payout after being sexually harassed at work is feeling vindicated, say those who lobbied for her.

Despite much of the case being subject to a confidentiality agreement, the Office of Human Rights Proceedings has revealed a substantial settlement has been reached between a business owner and a sex worker.

The money is to compensate the woman for emotional harm and lost earnings.

Human rights proceedings director Michael Timmins said the settlement was “substantial” and hoped to serve as a benchmark for future cases.

New Zealand Herald, 14 December 2020

The finding of the tribunal are not yet available online but seem to be consistent with the finding of DML v Montgomery in March 2012 where DML was awarded $25,000. There the key finding was that Sex workers are protected by section 62 of the Human Rights Act 1993 (sexual harassment).

Sex workers work in an environment where there will be some sexual language/behaviour. However, there is a difference between sexual language/behaviour with a legitimate work purpose, and sexual language/behaviour that is unwelcome or offensive to the individual.

Some key findings in that case were:

[106] But context is everything. Even in a brothel language with a sexual dimension can be used inappropriately in suggestive, oppressive, or abusive circumstances.

[110] In addition to establishing that the spoken language complained of was of a sexual nature, the plaintiff must also show that the language was either unwelcome or offensive to her. Whereas the test for the first element is objective, the test for the second is subjective. That is, it is the complainant’s perception that is relevant. It is immaterial whether the person complained about (or any other person) considered the language to be unwelcome or offensive. See Proceedings Commissioner v Woodward [1998] NZCRT 8 at 6 (CRT, 22 May 1998) and EN v KIC [Sexual harassment] at [49]. There is no “reasonable person” test. The harasser must take the consequences of the victim’s sensibilities. See Lenart v Massey University at 267.

[111] It follows that it is not possible to ask whether a “reasonable sex worker” would find the behaviour unwelcome or offensive. If the Tribunal accepts the plaintiff’s evidence that she did indeed find Mr Montgomery’s language unwelcome or offensive, that is sufficient. If in a brothel language or behaviour of a sexual nature could never be considered unwelcome or offensive sex workers would be denied the protection of the Human Rights Act.

[146]… Sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment, especially by the manager or employer at the brothel. Sex workers have the same human rights as other workers. The special vulnerability of sex workers to exploitation and abuse was specifically recognised by the Prostitution Reform Act 2003 which not only decriminalised prostitution but also had the purpose of creating a framework to safeguard the human rights of sex workers and to promote their welfare and occupational health and safety:

3 Purpose
The purpose of this Act is to decriminalise prostitution (while not endorsing or morally
sanctioning prostitution or its use) and to create a framework that—
(a) safeguards the human rights of sex workers and protects them from exploitation:
(b) promotes the welfare and occupational health and safety of sex workers:
(c) is conducive to public health:
(d) prohibits the use in prostitution of persons under 18 years of age:
(e) implements certain other related reforms.

Irrespective of my own personal views on prostitution, it is cases such as these that persuade me that out of all options for dealing with it, I am pleased that what has become known as the New Zealand model was adopted here in 2003. Do any of my readers have an opinion on this?