How have Sexual Harassment laws shaped up across the world
Originally published at www.ungender.in.
If one were tasked with tracing the term “Sexual Harassment” the results would certainly be curious. While its origin remains uncertain at best, pragmatism renders the question largely unimportant. What enrages people is that it exists, that it is a very real problem and that it could happen at any time, anywhere and with anyone. Sexual Harassment at the Workplace can, for the time being, be considered as a pathogen. A very harmful pathogen that, if left unchecked, could wreak havoc.
Essentially, sexual harassment is troubling on two counts. The first is the very fact that a woman has been discriminated against on the basis of her gender. The second is the effect that it has on the treatment of women at their workplace. Rather than being treated as consummate professionals, they are reduced to “pretty faces with empty heads”. A problem that is evident even in modern pop culture’s portrayal of the ‘Office’ in the sixties. A prime example of the same is seen in AMC’s hit show “Mad Men” where two characters, Peggy and Joan, offer suggestions to save their parent company, only for their ideas to be completely disregarded while the men present in the room begin to make reference to panties coming in pairs as an analogy to the two women presenting the idea together.
Undeniably, there is a need for a strong check on the problem. And this is exactly what laws aiming to prevent sexual harassment at the workplace aim to do. It is the most sure shot cure that one could hope to find. And what a cure it is, indeed. A hero whose virtues fill page after page, whose powers differ from place to place, but are intended to have the same effect. An idea that can travel to a different place only when it is accepted in the minds of the people.
Where did it all start?
The Civil Rights Act of 1964 prohibited discrimination regarding employment on the basis of sex, among other bases. Nowhere close to what was required to combat the problem, but a definite beginning nonetheless. While it is disputable, the initial development and evolution of Sexual Harassment law occurred, for the most part, in the United States of America. The nature of the cases filed was largely confined to instances of quid pro quo nature.(1) Essentially, these were cases where the employer would promise the employee certain benefits, or, in some cases, hinge their employment, in return for sexual favours.
This was further recognised in the Equal Employment Opportunity Commission’s regulations which defined sexual harassment as a form of sexual discrimination, prohibited by the Civil Rights Act of 1964. In asubsequent case (2), which established the standards for conduct being considered unwelcome, the idea of a ‘hostile environment’ was also recognised. The key issue, despite the voluminous legislation in place, was that women were simply unaware that they could go to court, and even if they did, they were unsure about the sufficiency of the grounds.
All this changed, following Anita Hill’s accusations against Clarence Hill which, due to it being highly televised, introduced America’s living rooms to the issue of Sexual Harassment. This resulted in the National Association of Working Women receiving 200 calls a day, up from 200 calls a week. A subsequent case introduced the standard of a ‘reasonable woman’ which resulted in cases being seen from the perspective of the complainant, rather than the defendant.
A primer on harassment laws at workplaces in different countries
The development of Sexual Harassment Law around the world has been uneven, at best. This could be attributed to the delayed awareness about how grave the problem is, as well as the existing status of women in those places. The more that women rights are recognised, the more attention issues like this will receive as they would shock the collective conscience of the people.
Currently, cases of sexual harassment at the workplace are specifically restricted to being by a person who is in a superior position to the complainant and has used the same in order to obtain sexual favours from the person.
The European Union issued a Directive(3) for the treatment of men and women in an equal manner regarding access to employment, vocational training, promotions and working conditions. Sexual Harassment within the meaning of this Directive is considered as a form of discrimination, and is prohibited.
The law regarding Sexual Harassment in Denmark is governed by Law number 1385 of December 21, 2005. Here, Sexual Harassment is any action with the effect of making the victim feel inferior or hurting their dignity. Further, any action which tries to alter the equal status of men and women by using the differences in sex is also considered to be Sexual Harassment.
While the earlier definition of the criminal code defined Sexual Harassment simply as “harassing a person in order to obtain favours of a sexual nature from them”, it was later scrapped for being too vague. The new definition, divides sexual harassment into two, the first being the repetition of words or action with sexual connotation which are humiliating and affect the dignity of the person. The second being where there is sexual blackmail, where there is serious pressure on the employee exercised to obtain performance of acts of a sexual nature. Violation of Sexual Harassment provisions would result in imprisonment for a period of 2 years and 30,000 fines, which is 3 years and 45,000 in case of aggravated instances.
Under the current German Law, sexual harassment is not punishable by law. The woman’s right to retaliate also extends only until the offender engages in such act. Recognising the deficiencies that exist, a bill on Sexual Harassment is currently being tabled for passing. As of now, the German General Equal Treatment Act governs this area where complaints can be filed regardless of the gender of the person.
Currently, the Spanish Labour Act deals with cases of sexual harassment at the workplace. In these cases, the act of sexual harassment can be punished by terminating the service of the harasser.
While the earlier law in Greece was very weak, following the Directive from the EU, they amended their own law. Currently, sexual harassment falls under gender based discrimination at the workplace. Victims also have the right to compensation, following violations of the same.
Possibly the archetype of the law merely being words on paper, while the law prohibits the utilization of an office position and material dependence for coercion of sexual interactions, 100 per cent of female professionals in the country have been sexually harassed by their boss, 32 per cent have had intercourse with him at least once, while 7 per cent claiming to have been raped.
Sexual Harassment is defined as any behaviour of sexual nature or which can be attributed to gender, affronting the human dignity at the workplace.(4) Apart from prohibiting Sexual Harassment, there is also protection for the employee against dismissal during the complaints procedure. The ban under this law is intended exclusively for employers who have a responsibility to look out for the well-being of the employee.
In 1986, the Discrimination Act of 1975 was modified, and sexual harassment was also established as a form of discrimination. Unwanted sexual conduct or on the ground of the person’s sex with the effect of violating their dignity is considered as harassment.
The Act governing such cases is the Zimbabwe Labour Relations Act. The act of sexual harassment is ordinarily reported to the Labour Officers, who treat the same as unfair labour practices.
Morocco- In 2016, Morocco laid down a stricter law proscribing sexual harassment which was punishable with fines and could also extent to a possible jail sentence of up to 6 months. This was in response to the existing law not being upheld.
The Sex Discrimination Act of 1984 defined sexual harassment as an unwelcome sexual advance or engaging in such conduct that the person would have reasonably anticipated the possibility of being harassed.
Following the Vishaka guidelines which were laid down in 1997, after a gap of nearly 16 years, the Sexual Harassment of Women at Workplace Act, 2013 was passed. Under this Act, sexual harassment is considered to be a violation of a woman’s fundamental right to equality, enshrined in articles 14 and 15 of the Constitution of India. In addition to this, the Criminal Law (Amendment) Act, 2013 made Sexual Harassment an expressed offence.
In 1998 the Israeli Sexual Harassment Law came into effect to prevent such behaviour that would affect human dignity and self-respect. The violation of the provisions would result in the person being liable to imprisonment which could last from 2 to 4 years.
In a 1989 case, a woman who had been subject to the spreading of sexual rumours by a co-worker obtained a favourable verdict from the court. While this resulted in mass public awareness, 10 books were published relating to “how not to harass women” among other topics, while the Japanese word for Sexual Harassment (Sekuhara) was named ‘Word of the Year’. The laws also establish two forms of sexual harassment at the workplace, one where the sexual acts are attached to a reward or penalty, and the other where the workplace is made unpleasant.
The Protection against Harassment of Women at Workplace Act, 2010 defined Sexual Harassment as unwelcome advances being made or sexually demeaning attitude which interferes with the performance of work and creates an intimidating work environment. Further, there was also a Code of Conduct for Gender Justice in the Workplace which is intended to deal with cases of sexual harassment.
The Anti Sexual Harassment Act of 1995, lays down the definition of Sexual Harassment, which could be segregating them in a manner to adversely affect a certain employee, making unwelcome advances towards the employee or even creating a hostile workplace environment. Violation of the same is punishable by 10,000 to 20,000 pesos and/or imprisonment for a period of 1 to 6 months.
Clearly, there is a large disparity between the Sexual Harassment laws that are laid down in different regions of the world. While not all countries have laid down laws which prohibit sexual harassment at offices and other workplaces, it has been included as one of the kinds of sexual harassment under the prevailing legislation. It is likely that as the problem gains wider recognition and its gravity is understood by the people of these regions, there will be steps taken to ensure the implementation of a separate legislation regarding the same.However, as is seen in many instances, the laws wind up being merely paper guidelines, whose implementation leaves a lot to be desired. This also points out that, no matter how important it is to have clear cut and appropriate definitions, it is equally vital that these laws are followed through. Unless it is imbibed in the people that deviance from the law is a serious issue and is accordingly punished, compliance with the same will remain an unfulfilled objective.
Finally, it is also necessary for the law to evolve with time. As the perception of the people changes with regard to the relevant social issues, the same is to be reflected by the law. Duly, the increased awareness regarding the safety of women, should also ensure that the laws that are subsequently enacted also aim at achieving the same.
(1) Barnes v Train (1974) is commonly recognised as the first sexual harassment case in America. The employee who brought the case was deprived of her job following her refusal of the advances made on her by a male supervisor.
(2) Meritor Savings Bank v Vinson (1986) created the idea of a hostile environment. This meant that cases that would previously have been tossed away by courts now had legal merit.
(3) Directive 2002/73/EU.
(4) Article 4 of the Federal Act on Gender Equality (1995).