Definitions and behaviours
Some harassing and bullying behaviours may be a form of discrimination. Such behaviours may be unlawful if they are based on one or more of the thirteen grounds covered by the Human Rights Act 1993: sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation. Bullying and/or harassment may constitute discrimination if disadvantage based on one of the above grounds can be shown.
Discrimination occurs when a person is treated unfairly or less favourably than another person in the same or similar circumstances in any of the areas of public life covered by the Act. Employment is one of these areas.
Structural (systemic) discrimination occurs when an entire network of rules and practices disadvantages less empowered groups while serving at the same time to advantage the dominant group.
Direct discrimination specifically excludes a person from a benefit or opportunity because of factors or characteristics unrelated to their ability to do the job - for example, refusing to promote someone because of their sex, race or sexual orientation.
Indirect discrimination occurs when people are treated the same, but in practice that treatment has a detrimental effect on a particular person or persons, based on a ground of discrimination.
While New Zealand has specific legal protection from sexual and racial harassment in the workplace, other forms of harassment are a developing area of employment law. There is currently active worldwide campaigning to educate employers and employees about workplace harassment and bullying and to legislate against such behaviour.
Many workplaces, including in the New Zealand Public Service, have anti-harassment policies and try to resolve their own conflicts internally. While those policies usually include definitions, further definitions and examples are included in these guidelines as a reminder of the kinds of behaviour under discussion. Definitions give clear guidance to employers and employees as to what is not acceptable behaviour in the workplace and should clarify the rights and obligations of both employees and managers. Clear definitions may impose a test of reasonableness to protect employers from overly sensitive employees.
There are many different definitions of general workplace harassment. Hadyn Olsen, a New Zealand workplace trainer in this field, has defined it as:
"...unwanted and unwarranted behaviour that a person finds offensive, intimidating or humiliating and is repeated, or significant enough as a single incident, to have a detrimental effect upon a person's dignity, safety and well-being".
The behaviour can range from that causing slight embarrassment through to criminal acts. For example:
- a generally "hostile" work atmosphere of repeated put-downs, offensive stereotypes, malicious rumours, or fear tactics such as threatening or bullying;
- a general work atmosphere of repeated jokes, teasing, flirting, leering or sleazy "fun";
- an isolated but significant incident, such as a violent attack or sexual assault;
- comments or behaviour that express hostility, contempt or ridicule for people of a particular race, age, etc.
The Human Rights Act 1993 defines racial harassment as uninvited behaviour that humiliates, offends or intimidates someone because of their race, colour, or ethnic or national origin. It can involve spoken, written or visual material or a physical act. Racial harassment provisions are also contained in sections 103, 109 and 117 of the Employment Relations Act 2000.
Racial harassment can include:
- making offensive remarks about a person's race;
- mimicking the way a person speaks;
- making jokes about a person's race;
- calling people by racist names; and
- deliberately pronouncing people's names wrongly.
Sexual harassment is covered by both the Employment Relations Act and the Human Rights Act (section 62). Part 9 of the Employment Relations Act 2000 provides a definition of sexual harassment. The definition and various other provisions relating to sexual harassment are contained in sections 103, 109 and 117.
Sexual harassment can include:
- personally sexually offensive verbal comments;
- sexual or smutty jokes;
- repeated comments or teasing about someone's alleged sexual activities or private life;
- persistent, unwelcome social invitations, telephone calls or emails from workmates at work or at home;
- following someone home from work;
- offensive hand or body gestures;
- unwelcome physical contact - e.g. patting, pinching, touching or putting an arm around another person's body;
- provocative visual material - e.g. posters of a sexual nature;
- hints or promises of preferential treatment in exchange for sex, or threats of differential treatment if sexual activity is not offered; and
- sexual assault and/or rape.
Bullying can be considered a form of harassment. There is no legal definition, and definitions in the research literature are many and various. The behaviours below have been drawn from a number of sources.
Overt bullying can include:
- standover tactics;
- verbally abusive or degrading language or gestures;
- shouting or yelling or screaming;
- unexplained rages;
- unjustified criticism and insults, nit-picking and fault finding without justification;
- constant humiliation;
- belittling remarks;
- unjustified threats of dismissal or other disciplinary procedures; and
- punishment imposed without reasonable justification.
Covert bullying can include acts such as:
- deliberately overloading an employee with work and imposing impossible deadlines;
- sabotaging an employee's work by withholding information that is required to fulfil tasks;
- hiding documents or equipment;
- constantly changing targets or work guidelines;
- not providing appropriate resources and training;
- isolating or ignoring an employee on a consistent basis; and
- changes in the duties or responsibilities of an employee to the employee's detriment without reasonable justification.
Bullying between staff may include teasing, practical jokes, gossiping, excluding co-workers and criticising co-workers on a regular and systematic basis.
The sending and receiving of pornographic, sexually explicit or offensive material through email is already forbidden in some departmental guidelines, as is harassing other email users, whether through language, frequency or size of messages.
The images used on screensavers are the technological equivalent of posters, and the same guidelines as apply to such visual materials in the workplace apply to them.
The following are examples of behaviours that are not considered to be harassment or bullying:
- friendly banter, light-hearted exchanges, mutually acceptable jokes and compliments;
- friendships, sexual or otherwise, where both people consent to the relationship;
- issuing reasonable instructions and expecting them to be carried out;
- warning or disciplining someone in line with organisation policy;
- insisting on high standards of performance in terms of quality, safety and team cooperation; legitimate criticisms about work performance (not expressed in a hostile, harassing manner);
- giving negative feedback, including in a performance appraisal, and requiring justified performance improvement;
- assertively expressing opinions that are different from others;
- free and frank discussion about issues or concerns in the workplace, without personal insults; and
- targeted affirmative action policies, parental leave provisions, or reasonable accommodation and provision of work aids for staff with disabilities, etc.
Addressing harassment should not be seen as an attempt to prevent managers from doing their jobs or to prevent people from having a reasonable amount of fun or good humour at work. It is an attempt to respect the dignity of people and to support their right to feel safe and respected at work. Occasional differences of opinion, conflicts and problems in working relations are part of working life and do not constitute bullying. Workplace counselling, managing underperformance, or other legitimate action in accordance with departmental policy and procedures, are not bullying or harassment.