Legal Arguments on Sexual Harassment (1)
Written by SAHR members, BRID DOHERTY, ALICE OLLINO, LATIFA AKAY, JULIA RIDEMARK, SALMA ELMASRY. Reviewed by Akhila Kolisetty, Deborshi Barat and Natasha Latiff.
Here are a range of rights-based arguments on sexual harassment that have succeeded at trial. We explain how underpinning gender stereotypes amounts to discrimination; and how the issue concerned can instead be construed, or, dismissed. It is intended that these arguments can be lifted and rephrased for use in similar sexual harassment cases that take place in a variety of cultural contexts.
(1) The defendant argued that, because he did not touch the complainant, his actions did not amount to sexual harassment.
Argument: We reiterate to the court that the conducts that constitute sexual harassment ranges from innuendos, inappropriate gestures, suggestions or hints. More severe forms of sexual harassment include fondling without consent or by force to its worst form, namely rape.
(2) The defendant argued that he was merely joking and engaging in workplace banter.
Argument: We argue that the way in which a potentially offensive remark is conveyed is one aspect of the assessment. We argue that more importantly, it is the effect of such remark or banter on a woman’s sense of comfort and safety at the workplace that should precede the determination as to whether a remark, joke, or banter amounted to sexual harassment.
In many other courts, judges have agreed that sexual harassment is also caused by jokes and cartoons displayed in the workplace. The jokes do not need to be addressed specifically to the complainant or refer to her, so long as it creates a hostile working environment.
To take sexual cartoons as an example, the distribution of cartoons by men to women once or twice a month over several years can amount to sexual harassment. It has been argued that such jokes “ha[d] no humorous value to a reasonable person,” and “offended the [complainant] as a woman.”[1]
The court went on to say that a hostile environment can be based largely (though not entirely) on “caricatures of naked men and women (and) animals with human genitalia”. In one case, though “[m]any of the sexual cartoons and jokes . . . depicted both men and women,” the court concluded that “widespread verbal and visual sexual humour — particularly vulgar and degrading jokes and cartoons . . . may tend to demean women” more so than men.[1]
The court also added that an employee can be sexually harassed by offensive emails such as “jokes-of-the-day” circulated to her and her co-workers, and by the Supervisor’s praise [in a department meeting] of the co-worker circulating the jokes.
We argue that conducts that amount to sexual harassment can occur in a variety of circumstances:
a) it occurs when a woman is expected to engage in sexual activity in order to obtain or keep employment, or
b) obtain promotion or other favourable working conditions.
c) or it is any unwanted sexual behaviour or comment that has a negative effect on the recipient.[1]
3. The defendant argued that other women in the office never felt sexually harassed by him and that his behaviour was “no more than mildly flirtatious …”. In support of this contention he submitted two petitions:
The first petition was signed by all the women in the office who were working as his subordinates. The petition stated that they did not feel offended or sexually harassed by his past behaviour.
The second petition was signed by some other employees of the company, requesting the management to “reconsider his dismissal”.
Argument: We argue that it cannot be accepted that just because all of the women did not complain of sexual harassment mean that they had consented to the applicant harassing them. Nor can it mean that they took pleasure in his doing so. In the case where the defendant submitted two petitions by male and female employees, the court denied both. The second petition was dismissed on the grounds that the employees who signed it did not know the facts and naturally would have (felt) sympathy for the applicant.
Source: Priest v Rotary 98 FRD 761 (1983)
See all parts of this series here.
