Tag archives: sexual harassment

WHS regulators issue guides and codes of practice on psychological health and managing sexual harassment claims

Earlier this year, the Respect@Work – National Inquiry into Sexual Harassment in Australian Workplaces, conducted by the Australian Human Rights Commission made key recommendations addressing psychological health and sexual harassment in Australian workplaces. Specifically the inquiry recommended:

  • the model WHS Regulations should be amended to address psychological health by identifying and appropriately controlling work-related psychosocial risks (consistent with the 2018 Boland Review recommendations); and
  • WHS Ministers develop guidelines or Codes of Practice on sexual harassment, allowing it to be dealt with in a ‘consistent, robust or systemic way’.

Since the publication of the Inquiry’s final report, SafeWork NSW and … Continue Reading

On allegations of sexual harassment made on social media in Quebec: what employers need to know

Over the last few weeks, several cases of sexual harassment allegations have been posted both openly and anonymously on social media in Quebec.

One issue that will surface for employers is how these public allegations should be handled when the actions, comments or gestures stem from one of their own employees.

First, provincially regulated employers need to make sure they have a psychological harassment prevention and complaint processing policy in place. This policy must be made available to employees and include a section on behaviour that manifests itself in the form of verbal comments, actions or gestures of a sexual … Continue Reading

Australian Human Rights Commission – Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces

The Australian Human Rights Commission (AHRC) has recently released its ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ report (Report) in response to the decision in June 2018 by the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, to launch the independent national inquiry into sexual harassment in Australian workplaces (Inquiry).… Continue Reading

France: Le harcèlement sexuel susceptible d’être exclu en cas d’attitude ambigüe de la victime

Le harcèlement sexuel est défini, dans le Code du travail, par « des propos ou comportements à connotation sexuelle répétés qui soit portent atteinte à [la] dignité [du salarié] en raison de leur caractère dégradant ou humiliant, soit créent à son encontre une situation intimidante, hostile ou offensante ».

Le Code du travail prévoit également une assimilation aux faits constitutifs de harcèlement pour « toute forme de pression grave, même non répétée, exercée dans le but réel ou apparent d’obtenir un acte de nature sexuelle, que celui-ci soit recherché au profit de l’auteur des faits ou au profit d’un Continue Reading

France: Provocative acts do not necessarily fall within the scope of sexual harassment if the victim’s behaviour is ambiguous

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour … Continue Reading

New York State and New York City employers face new compliance requirements

Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations.  New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.

New York City lactation room and policy laws — new policy requirement

Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee … Continue Reading

Have your say on Sexual Harassment in the Workplace

The recent Australian Human Rights Commission (AHRC) national survey on sexual harassment has made it clear that sexual harassment in the Australian workplace is increasing.   In June 2018, the AHRC announced a National Inquiry into Sexual Harassment in the Workplace in order to report, on other things, the prevalence and reporting of harassment and the measures being taken in preventing and responding to allegations of harassment.

The AHRC has invited submissions from interested parties to assist the inquiry.  We are preparing a submission based on our experience of assisting employers in preventing and managing sexual harassment in the workplace.  We … Continue Reading

New York State issues final guidance on anti-sexual harassment law and delays mandatory annual training deadline

In September 2018, we reported on New York State’s issuance of draft guidance under the recently enacted New York State law aimed at preventing sexual harassment.  New York State has now issued final guidance under this law.  This includes final guidance regarding:

  • The anti-sexual harassment policy that every New York State employer (regardless of size and including those who employ only domestic and household employees) must adopt by October 9, 2018; and
  • The mandatory interactive anti-sexual harassment training that every New York State employer is required to conduct for all employees annually.

Final Guidance Delays Deadline to Conduct First Annual

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New York City employers take note: New anti-sexual harassment laws enacted

On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace.  The laws are summarized below.  New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them.  New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter).  Such training is now required under both New York State and New York City law.  New York State’s law, which was also recently enacted, will become effective first.  For a brief discussion … Continue Reading

New York State’s new sexual harassment prevention laws will require action by all New York employers

On April 12, 2018, New York State  Governor Andrew Cuomo signed into law new measures aimed at preventing sexual harassment. We summarized these provisions in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, published on April 11th, in anticipation of the bill being signed into law.  The new law requires New York State employers to adopt sexual harassment prevention policies and conduct annual training on such policies, restricts the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extends workplace protections … Continue Reading

Sexual harassment settlements (and attorneys’ fees) may no longer be tax deductible for employers

As a result of the new tax reform legislation, employers may no longer deduct on their tax returns any “settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement” (emphasis added) or any “attorney’s fees related to such a settlement or payment.”

This change in the tax law became effective on December 22, 2017, when the law was enacted.  Previously, employers who settled sexual harassment claims typically did so confidentially and deducted the settlement payments and related attorneys’ fees as business expenses.

Now, the new rule prohibits such … Continue Reading

Second Circuit’s decision expands liability for discrimination under “cat’s paw” doctrine

You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied by courts where a decision maker is manipulated by an employee with bad motives into taking an adverse action against another employee.

The United States Supreme Court first validated employer liability under the “cat’s paw” theory in Staub v. Proctor Hospital in 2011, where it … Continue Reading

Vicarious liability for sexual harassment

This article was written by Steven Adams, an Associate and Hermann Nieuwoudt, a Director at Norton Rose Fulbright South Africa

The Eastern Cape High Court has developed the common law and expanded the circumstances in which an employer may be held vicariously liable for its employee’s sexual harassment of another employee.

Phil-Ann Erasmus was employed by the Ikweze Municipality as an Archives Clerk. Her immediate superior was Mr Jack.Erasmus was based at the Municipalities Jansenville office and Jack at its Klipplaat office. In exercising his duties Jack often visited the Jansenville office and the two often worked together after hours.… Continue Reading

Sexual advancement v sexual harassment

This article was written by Mandi Osher at Norton Rose Fulbright South Africa

Mere sexual attention will not necessarily amount to sexual harassment.  Last month, the Labour Court found that something more may be required.  To qualify as something more serious, sexual attention must cross the line from a sexual proposition to actual sexual harassment.

In this case, an employee accompanied a contractor and a consultant of the employer on a work trip to Botswana.  The three all stayed at the same lodge, had dinner together and whilst the contractor was settling the bill the employee, after confessing his loneliness, … Continue Reading

We filter: Crafting An affirmative defense to sexual harassment?

Many employers have implemented policies and procedures to protect employees from harassment in the electronic work space in an effort to limit liability.

EEOC statistics suggest that claims of unlawful harassment through electronic communications, including emails, pornographic websites, and sexual comments on social media and blogs make up an increasing percentage of sexual harassment charges and lawsuits.

Few court decisions address whether harassment by electronic conduct should be treated differently than physical or verbal forms of unlawful conduct.

Yet, in an age where employers provide computers, email accounts, and internet access to employees, efforts to filter and block offensive conduct … Continue Reading

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