Laws prohibiting sexual harassment emerged in the context of the discrimination and outright violence that women experience in the workplace. Workplace sexual harassment law is by far the most developed and most commonplace around the world. In the United States, where sexual harassment laws and judicial decisions were first developed in the 1970s, courts recognized that women experienced harassment in two common forms. First, quid pro quo harassment, where the victim’s refusal or acceptance of behavior influences decisions concerning her employment or conditions of employment, e. g. a manager tells his assistant, “Perform a sexual favor for me and you will [/or you will not] get promoted.” Second, hostile work environment claims, in which the harasser’s or harassers’ behavior creates an intimidating, hostile, degrading, humiliating, or offensive environment, e.g., male employees make daily comments over a period of time about the sexual life and body of their female co-worker. (See: Williams v. Saxbe, 413 F. Supp 654 (Ct. App. D.C. 1976))
Definition
Legal definitions of sexual harassment in the workplace should include the following elements:
- Occur in the place of work or in a work related environment;
- Occur because of the person’s sex and/or it is related to or about sex;
- Be unwelcome, unwanted, uninvited, not returned, not mutual; and
- Affect the terms or conditions of employment (quid pro quo sexual harassment) or the work environment itself (hostile environment sexual harassment).
(See: What is Sexual Harassment, StopVAW, The Advocates for Human Rights.
Workplace laws should also reflect the Core elements of sexual harassment legislation discussed in that section)
Legal definitions should cover all work-related activities as well as a wide array of work-based relationships, not solely supervisors harassing employees.
The Caribbean Coalition against Sexual Harassment has prepared a model law on Protection against Sexual Harassment in the Workplace.
CASE STUDY – New South Wales
In New South Wales, Australia, workplace sexual harassment is included in broad anti-discrimination legislation and the law provides a detailed exposition of where sexual harassment might occur and by whom it might be perpetrated.
(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person, or
(b) a person who is seeking to become a commission agent or contract worker of the person.
(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.
(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.
(7) It is unlawful for a member of either House of Parliament to sexually harass:
(a) a workplace participant at a place that is a workplace of both the member and the workplace participant, or
(b) another member of Parliament at a place that is a workplace of both members.
(8) It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant.
(9) In this section: “place” includes a ship, aircraft or vehicle. “workplace” means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant. “workplace participant” means any of the following:
(a) an employer or employee,
(b) a commission agent or contract worker,
(c) a partner in a partnership,
(d) a person who is self-employed,
(e) a volunteer or unpaid trainee.
(10) Without limiting the definition of “workplace”, the workplace of a member of either House of Parliament is taken to include the following:
(a) the whole of Parliament House,
(b) any ministerial office or electoral office of the member,
(c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.
(See: Anti-Discrimination Act, sec. 22B)
The New South Wales law also covers harassment and discrimination in a multitude of other areas, including education, sport, provision of goods and services, and property transactions. Judicial decisions in Australia have enforced these types of provisions. The Australian Department of Defense was held liable for sexual harassment by one of its employees even when the most serious incident took place at a private party hosted in a private home by other department employees. See: Lee v. Smith & Ors, FMCA 59 (Australia 2007).
Types of Prohibited Behavior
- It is important that sexual harassment laws prohibit both sexual and sex-based behavior. The most commonly reported form of sexual harassment is “conduct of a sexual nature.” This means actions, language or visual materials which specifically refer to, portray or involve sexual activity or language. Conduct of a sexual nature may include overt sexual solicitations, inappropriate touching, sexual jokes, and inquiries about a person’s sex life. Sex-based harassment is conduct that occurs because of the sex of the intended victim but is not necessarily sexual in nature. Examples of this kind of behavior are disparaging comments on the role of women, or discriminatory treatment aimed only at women. (See: McCann ILO, Sexual Harassment at Work: National and international responses, 20, 2005.)
- The Council of the European Union Directive 2006/54/EC mandates that all European Union countries prohibit both sexual and sex-based harassment in their national laws. The directive provides the following definitions:
‘harassment’: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
‘sexual harassment’: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment;
- The International Labour Organization has defined sexual harassment to include both sexual and sex-based behavior with specific examples:
[A]ny insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc; a condescending or paternalistic attitude with sexual implications undermining dignity; any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats; any lascivious look or other gesture associated with sexuality; and any unnecessary physical contact such as touching, caresses, pinching or assault.
(See: McCann,Sexual Harassment at work: National and international responses, 2005.)
- Providing concrete examples of the types of prohibited behavior can assist in interpretation of the law, but it is important for drafters to be aware that language should be carefully crafted so as not to inadvertently exclude certain types of behavior.
CASE STUDY
India: Ongoing Fight to Implement Landmark Case
In 1997, a group of activists and NGOs in India filed a class action alleging that the pervasive sexual harassment of women in the workplace violated several articles of the Constitution. Specifically, the action alleged that sexual harassment violated the right to gender equality, the right to life and liberty, and the right to practice any profession, trade, or occupation. The case was filed after the brutal gang rape of a social worker in Rajasthan. The Court noted that the laws in India had not sufficiently protected the rights of women workers and that the Court had a duty to “fill the legislative vacuum.” See: Vishaka and others v. State of Rajasthan, para. 3.
In its opinion, the Court stated that “[g]ender equality includes protection from sexual harassment and [the] right to work with dignity, which is a universally recognized basic human right.” (Vishaka, para. 10) The Court also specifically referenced the Convention on the Elimination of All Forms of Discrimination Against Women, recognizing the Indian government’s ratification of CEDAW and its commitments regarding women’s rights made at the Fourth World Conference on Women in Beijing.
The Court went on to define sexual harassment broadly as “unwelcome sexually determined behavior (whether directly or by implication)” including:
- Physical contact and advances;
- A demand or request for sexual favors;
- Sexually colored remarks;
- Showing pornography;
- Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. (Vishaka, para. 16(2)).
The Court also stated that when:
any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. (Vishaka, para. 16(2)).
In the years since the Vishaka decision, women’s rights advocates have continued the fight for implementation of the decision. In 2010, a bill to make the directives of the Supreme Court decision law was introduced into the lower house of the Indian Parliament. Unfortunately, the proposed bill contained provisions that would punish complainants who brought claims, if their claims considered false or malicious. The Bill also imposed onerous procedures for sexual harassment claims to be proven, as well as imposing a short time limit of three months for filing a complaint. In addition, the bill does not cover many workplaces, such as the armed forces and construction sites. These provisions are contrary to the powerful principles the Court had declared in Vishaka and subsequent decisions and could dissuade victims from coming forward to lodge claims. Despite advocacy to change the draft, the new law passed the lower house (Lok Sabha) in December 2012 with the provisions in place. While legislation to address sexual harassment is an important development, advocacy continues in order to address the shortcomings of the bill. See: Sexual harassment of women at workplace bill passed by Lok Sabha (Lawyers Collective, 2012); Flaws in Sexual harassment Act?, The New Indian Express, Sept. 21, 2012.
Watch a video about Indian women lawyers’ concerns about sexual harassment during their work in the courts, and the fact that the new law may not adequately address the issue.
CASE STUDY
Bangladesh: Advocacy on the Indian Model
Vishaka has had broad implications in India and beyond. In 2008, a coalition of NGOs in Bangladesh filed a petition similar to that in Vishaka alleging that sexual harassment constituted a violation of Bangladesh’s constitution. Following much of the reasoning of Vishaka, and quoting the Indian Supreme Court among others, the Supreme Court of Bangladesh issued guidelines with the force of law similar to those issued in Vishaka. The Court went even further in defining the types of conduct that could constitute sexual harassment, adding the taking of “still or video photographs for the purpose of blackmailing and character assassination; preventing participation in sports, cultural, organizational and academic activities on the ground of sex and/or for the purpose of sexual harassment; making love proposal and exerting pressure or posing threats in case of refusal to love proposal”, etc. (See: Bangladesh National Women Lawyers Association v. Gov. of Bangladesh and Others (2009)) Bangladesh’s law continues to be interpreted by the courts. A decision in 2010 confirmed that the guidelines issued in Bangladesh National Women Lawyers Association apply to women working in the educational setting. It found that a government education official who verbally abused a school headmistress in sexually colored remarks during a public meeting of her school because she did not wear a veil at the meeting had engaged in sexual harassment.
In 2011, mobile courts in Bangladesh were given the power to prosecute eve teasing, a form of public sexual harassment (see section on “eve teasing” below). Perpetrators can receive a year in jail, a fine or both. There is concern however that without a clear definition of sexual harassment enshrined in legislation, interpretation of the law could be uneven.
See: Advocate Salahuddin Dolon v. Bangladesh (2010); Women can’t be forced to wear veil, Women Magazine of Bangladesh, April 15, (2010); Pascal Villeneuve, Eve teasing is a form of sexual harassment, New Age, Dec. 7, 2012.