Where is the line?
Where the metaphorical “line” is with sexual harassment is often debated. Where a hug in the workplace may be considered normal and friendly. However, a cuddle is inappropriate and should not be encouraged. So what is the difference between a hug or a cuddle?
But there is no formal definition of what is a cuddle or a hug, and there won’t ever be. No one will decipher that a hug is less than 1.7 seconds and includes these elements, whereas a cuddle must be longer than “x amount of time”, etc.
There are two primary considerations an employee may consider prior to talking, touching, or gesturing to another coworker in relation to whether it would be considered an act of sexual harassment: context and how the intended party will feel.
A hug or a cuddle can be sexual harassment
At the end of the day, it is not what the perpetrator feels is sexual harassment, but the victim. If the victim is offended, humiliated, or upset by a hug or a cuddle then the action was wrong to do. However, what one person finds offensive will be different from another person. That is why context is important.
Context allows the perpetrating individual to assess how the affected party will feel from their behaviour. For example, one female staff member has worked with her female coworker for 2 years in the same role and developed a friendship. If one of the employees asks for a long hug (that some may consider a cuddle) to comfort them through a tough break up, this most likely will not be considered sexual harassment.
However, if the same scenario happened between a male manager and their younger female employee after work hours as he had made her stay back, this absolutely could be considered sexual harassment.
Sexual harassment is defined as any unwanted sexual acts that reasonably causes humiliation, offence, or distress to the affected party. The definition is quite broad to protect against a myriad of circumstance. There is no requirement for intention or repetition of the behaviour. Therefore, employees may be sexually harassing others without realising it.
Can I rely on consent?
Even in a case where there is perceived consent to the actions, such as the aforementioned example, there are multiple pitfalls to this ‘defence’. In a workplace setting it can be difficult to genuinely consent or receive consent.
A workplace inherently involves hierarchies and power dynamics. Particularly if there is a junior staff member involved. The employee may feel forced to consent in fear of repercussion from a senior staff member.
Gender power dynamics may also play a part as workplaces to not function in a vacuum. Stereotypical gender roles and dynamics can and do affect how female victims or affected parties act around males. Where females, disabled employees, or other minorities may feel as though they cannot refuse acts of intimacy.
There are also social pressures within a workplace that may pressure an employee to ‘consent’ to something that had made them uncomfortable or upset. There may be a workplace culture of hugging, talking about intimate topic, or after work activities that an employee does not agree with, but they do not want to be singled out.
How employees interact with colleagues is important to our mental health as we work in proximity for majority of the week. Therefore, good relations are important, and the risk of deteriorating that relationship is enough for people to ‘agree’ to things they typically wouldn’t.
Therefore, to prevent any risk of being found sexually harassing someone and intentionally or unintendedly making them uncomfortable it is advised to avoid any behaviour. This is dependent on the type of relationships and workplace. In the case that there are ‘mixed signals’ or ambiguity then always have a conversation with each other and that may resolve any potential issues.
What am I meant to do if I want to give someone a hug and I do not know if I can?
If you are unsure, even by the slightest amount, then do not engage in that activity or action. And as a general rule employees should not be touching each other, making sexual jokes, or innuendoes. It may be a joke, or the employee is offenders and upset.
There is no reason why an employee or employer should put themselves at risk of committing an act of sexual harassment for a joke, message, hug or a cuddle To protect yourself, your reputation, and workplace relationships, do not engage in this type of behaviour. If you are not sure, then do not do it.
What if I was hugged and did not like it?
If an employee if made to feel uncomfortable from a sexual or intimate act, such as hugging or cuddling, then they should complain to their Human Resources (HR) department. Or management if HR is not available. It is imperative that employees, especially female employees who make up the vast majority of victims, complain and inform their employer what has occurred.
If the employer does not know then they cannot do anything to stop the behaviour. Or mend loopholes by introducing new policies and procedures to prevent similar behaviour in the future.
Once a complaint is made, it is the employers legal and civil responsibility to investigate what has happened. However, that does not mean that HR will act in the victims’ interests. They are an employee of the company, and it is their job to deduce what had happened and resolve the problem with as little damage to the company.
Many outcomes may occur from an investigation. Some examples include organising a mediation meeting between the aggrieved parties, dismissing the perpetrator, or deducing that no sexual harassment has occurred. HR are meant to act as non-biased third parties to the investigation.
HR is not for employees
However, a fatal flaw is that they work for the interests of their employer, and in some cases, companies will outsource investigation responsibilities to avoid this problem.
One issue that may occur is that HR will diminish the victims’ complaints as a way to protect the company’s exposure or ‘vicarious liability’. Stating “it was only a hug, not a cuddle”, and that somehow HR believes no sexual harassment occurred. Vicarious liability relates to the degree in which the company is responsible for any illegal behaviour that had occurred by employees during the course of their employment.
Therefore, if an employee is sexually harassed in the workplace, the company can be found vicariously liable or responsible. There are strict requirements that companies need to implement preventative measures that will deter sexual harassment. Often this will be done through reiterating policies and procedures, training modules, or questionnaires.
In some cases where sexual harassment has occurred in the workplace, the company had done everything in their power to prevent sexual harassment and will not be considered vicariously liable.
Its not just a hug
In an attempt to avoid their integrity and procedures being questioned, HR or management will try to convince victim that what they are complaining about was not sexual harassment but “just a hug”.
Therefore, employees are less likely to pursue the matter further to institutes such as the Fair Work Commission or the Equal Opportunity Commission. If matters are never brought forward, then companies cannot be found liable.
This is why it is important not to allow companies to diminish or dismiss complaints. They inherently cannot act without bias and can act without the victims’ best intentions. This may not necessarily be done intentionally to cause harm; however, employees and employers have different goals and responsibilities. It would be incredibly difficult for businesses to act on the behalf of all their employees’ interests. Especially for large companies.
Therefore, employees need to act as their own advocate or seek the help of professionals if they do not know. It does not matter whether it is a hug or a cuddle, both can be sexual harassment.
A hug or a cuddle can make employees uncomfortable
In the case of Sammut v Distinctive Options Limited [2010] VCAT 1735, the male employee, Mr Sammut, claimed he was being sexually harassed by his employer, Ms Joy. Some examples of the sexual harassment included Ms Joy reciting an event where she had sexual intercourse in a car and that he had subjected him to hugs.
VCAT was clear that forcing employees to listen to sexual acts does constitute sexual harassment even if no physical acts was done to the individual. However, there was some debate as to whether hugging would constitute sexual harassment.
Ms Joy defended that she was a ‘huggy person’ and that it was intended to be supportive in nature. Not sexual in any way. Ms Joy continued her arguments stating that sexual harassment legislation was not made to “sterilise the workplace” of harmless acts of care and respect. And that no reasonable person would suggest such trivialities, such as a hug, to be offensive.
VCAT rejected Ms Joy’s arguments. They dismissed that the workplace was ‘universally huggy’ and that the hugs were actually intimate in nature and more than a supportive or comforting pat on the shoulder. Furthermore, the employee’s complaints was not trivial as he did not like to be touched.
The employee was uncomfortable at the position he was being forced in and afraid how Ms Joy’s actions would affect his relationship with his partner. The hugs were with both arms around him even after he had asked her to top multiple times. Any reasonable person could predict that Mr Sammut would be humiliated or offended by Ms Joy’s actions.
Ms Joy was found liable for sexually harassing Mr Sammut. In response, VCAT awarded Mr Sammut $2,000.00 for “humiliation, pain and suffering”.
If a hug or a cuddle is upsetting you, speak out
This case is a perfect example of not allowing employers to diminish how an employee feels. For the employee it wasn’t “just a hug”. He was uncomfortable and the effects from the hugs cased him real psychological impact. That is why it is advised to not engage in the behaviour at all. As the perpetrator may not know how the affected party will feel. And the risk is not worth the consequences.
In the end it does not matter whether it was a motivational hug or a cuddle. All acts can be considered sexual in nature and, depending on the context, have the ability to likely humiliate or offend the victim. Therefore, caution is advised in any work or professional setting.
If an employee feels uncomfortable by someone else’s actions, even if they do not want to call it sexual harassment, it is important that the company knows about it. This allows everything to be recorded, and an opportunity to resolve the matter.
Employees should not be scared to talk to each other in fear of being accused of something. However, employees and employers should understand that there is a level of reasonability. Some topics and touching just should not be done in the workplace. And if you are unsure, then do not risk it. If there is something obscure going on than rely on communication and respectful behaviour to resolve the issue.
Understand the difference between a hug or a cuddle
Sexual Harassment Australia will help you stand against sexual harassment and toxic environments to protect and empower yourself. We have helped thousands over our 25 years working with victims. Recently we have been featured in the Herald Sun and other reputable sources. Don’t just take our word for it – let us show you our outstanding quality and professionalism.
If you are unsure if you are a victim or how to move forward let us help you. All information that you provide us will stay confidential. Whether you are suffering from harassment, bullying, or discrimination we will always try to help.
Contact us at 1800 333 666 or email mediate@awna.com.au now for a free consultation.
