Sexual Harassment in the Workplace
The Carrot Penis-is it Sexual Harassment?
When I was a student, back in the '80s I worked at a 5 star hotel as a waitress in one of their restaurants. One of the chefs,a guy not much older than me,was known for his cheeky, often sexually overt behaviour. One night, while I was working there, he had skillfully carved a big penis out of a carrot and enjoyed waving it around at me while making sexual comments. I was embarrassed and felt uncomfortable and ran out of the kitchen as quickly as I could but did nothing further about it. All these years later, now as a lawyer, I have asked myself the question, "was his behaviour sexual harassment?"
Yes and no!
In Western Australia, the Equal Opportunity Act defines sexual harassment as having 2 parts. The first part says that the behaviour has to be unwelcomed by the victim and that the harasser's behaviour must be of a sexual nature, which includes a sexual advance or request for sexual favours. Let's apply this definition to what happened to me as a waitress. I did not want or welcome the chef's behaviour and it was of a sexual nature as it involved sexual comments connected to the carrot penis. So the answer to the first part of the definition is a clear yes (although I didn't know it at the time).
The second part has to do with a belief that rejecting the behaviour will disadvantage the victim in his/her employment or that as a result of the rejection of the behaviour the victim is disadvantaged. If we apply this part of the definition to what happened to me as a waitress then I do not think that if I had told him to stop his behaviour it would have affected my employment. So the answer to the second part of the definition is no. The result is that legally what happened to me under the WA Equal Opportunity Act was not sexual harassment. The second part of the definition is often where employees can fall down in their claim and has raised some concerns in Western Australia about it being included. In fact the Federal legislation (and other States) do not include the part requiring the victim to be disadvantaged and instead have a section that says if the harasser intended to offend, humiliate or intimidate the victim then that is sufficient to make out a claim of sexual harassment. If I apply this definition to what happened to me as a waitress then I was offended and humiliated by his carrot penis talk and so he behaviour to me was sexual harassment under the Federal Legislation.
