Valentine's Day, the celebration of romance and romantic love, takes place annually on February 14.
While many assiduously avoid what they consider to be a crass commercialisation of intimate relationships, others embrace with relish the opportunities it presents to either affirm or pursue romance,
A few years ago extensive media coverage (usually with accompanying commentary to the effect of 'political correctness gone mad' or 'nanny state censorship') was given to a speech code at the University of New Orleans, the terms of which could render some suggestive Valentine's Day cards to be evidence of sexual harassment.
While no one wants to be accused of being a killjoy in matters of the heart, looking at it objectively, can Valentine's Day be an issue that needs to be managed in the workplace?
There are some employees who might assume that the conventions of Valentine's Day, including an expression or declaration of affection for a colleague, provide a 'free pass' or immunity in any disciplinary process, as if the cultural traditions of the day trump applicable legal principle.
Of course, this is not so. The spectre of sexual harassment looms large for the unwary.
Sexual harassment is generally defined as:
"an unwelcome sexual advance, unwelcome request for sexual favour or other unwelcome conduct of a sexual nature which, in the circumstances, a reasonable person, aware of those circumstances would anticipate the possibility that the person would be offended, humiliated or intimidated".
Some commonly cited examples of sexual harassment include repeated or inappropriate private invitations to go out on dates or sexually suggestive comments or jokes.
If the conduct is unwelcome and has a sexual element (as many Valentine's Day cards and gifts do) then there is a risk it could constitute sexual harassment. While cases of this kind very much turn on their own facts, it is highly unlikely that a 'cultural tradition' defence alone will be effective.
As such, unless the Valentine's Day gesture is given in a relationship, or it is certain the recipient will give an affirmative response or not be offended, then it could be unwise.
Further, under recent amendments to the Sex Discrimination Act 1984 (Cth) (SDA), it is unlawful for one person to subject another person in a workplace to a 'hostile work environment' on the ground of sex. This could include some general conduct undertaken in the cause of Valentine's Day (not necessarily directed at one person), if a reasonable person, having regard to all of the circumstances, would have anticipated the possibility that the conduct would result in the workplace environment being offensive, intimidating or humiliating to another person by reason of the sex of that other person (or characteristics that appertain generally, or are generally imputed, to the sex of that other person).
This raises the question, what is the role of the employer?
Employers are vicariously liable for sexual harassment unless they have taken 'all reasonable steps' to prevent it from taking place.
Further, after the recent amendments to the SDA, employers now have a positive duty to eliminate sexual discrimination. and must take 'reasonable and proportionate steps' to eliminate, as far as possible, among other things, sexual harassment and a hostile work environment.
The culture of the workplace should inform the practical approach to be adopted by the employer.
While a 'Valentine's Day' warning email distributed to all employees, like the type that is sent before workplace Christmas parties, might be somewhat overzealous, if there is an apparent risk of some employees using the day to take liberties that are inconsistent with sexual harassment or other current policies then there could be value in reminding employees of their obligations.
Given the way courts very carefully parse the language of sexual harassment policies, it might also be worth considering updating relevant policies to include a reference to conduct on Valentine's Day, lest it be subsequently argues a failure to specifically mention it is a lacuna leading to conclusion the employer has not taken 'all reasonable steps' to avoid vicarious liability, or 'reasonable and proportionate steps' to comply with the new positive duty under the recent amendments to the SDA.
For further information please contact:
Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
