Case Law of Sex Offenders

Abstract

Sexual harassment is increasingly viewed as one of the most egregious forms of violence against women in the workplace, and is particularly a problem in the new global economy where the work force is comprised largely of young women with little formal education or previous work experience. Subcontracting and other forms of flexible work also make it very difficult for women to organize against such abuse. These young women may be doubly affected by an industrial hierarchy that reinforces culturally based discrimination. Harassment can involve sexual advances or requests for sexual favors whereby submission to such conduct is made explicitly or implicitly a term or condition of employment; or whereby such conduct has the effect of substantially creating an intimidating or hostile working environment. Indeed, in many countries, it may also extend to bodily searches or pregnancy testing.

Literature Review

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The original Sex Discrimination Act did not contain a definition of sexual harassment or what would constitute harassment and this has been developed through case law. Amendments to the Act in 2005 introduced two definitions of sexual harassment: unwanted conduct on the grounds of someone's sex; and unwanted physical, verbal or non-verbal conduct of a sexual nature. The European Parliament has defined ‘harassment related to sex’ as follows:

“Where an 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.

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.”

Although there is general agreement about which behaviors may constitute sexual harassment, the individual experience of sexual harassment is subjective, but a key characteristic is that it is unwanted by the recipient. Sexual harassment often reflects an abuse of power within an organization, where members of one group of people yield greater power than others, generally women. It is linked with women's disadvantaged status at work and, more generally, in society. Sexual harassment can take many forms: from sexually explicit remarks and banter to harassment over the telephone and via email, to sexual assault. Studies have found that individuals have different perceptions of sexual harassment. For example, women are more likely than men to label certain behaviors as sexual harassment, similarly non-manual staff compared with manual staff. Behavior is more likely to be seen as harassment when there is a large power difference between the person being harassed and the person doing the harassing.

For years, women’s groups have alleged that women in workplaces encounter a glass ceiling, which refers to discriminatory practices that have prevented women and other protected-class members from advanc­ing to executive-level jobs. The extent of the problem is seen in the results of a survey of 825 large firms, in which women accounted for only 3.9% of the highest-paid executives, and only 1 % of the firms had a female CEO (Lavelle, 2001).   Simi­lar problems exist for racial/minority individuals as well (Raimy, 2001). In conjunction with the Civil Rights Act of 1991, a Glass Ceiling Commission conducted a study on how to shatter the glass ceiling encountered by women and other protected­ class members. A number of recommendations were included in the commission’s report (Glass Ceiling Commission, 1995).

Types of Sexual Harassment

Two basic types of sexual harassment have been defined by EEOC regulations (2003) and a large number of court cases, the two types are defined as follows:

Quid pro quo is harassment in which employment outcomes are linked to the individual granting sexual favors.
Hostile environment harassment exists when an individual’s work perfor­mance or psychological well-being is unreasonably affected by intimidating or offensive working conditions.

In the quid pro quo type, an employee may be told he or she may get pro­moted, receive a special raise, or be given a desirable work assignment, but only if the employee submits to granting some sexual favors to the supervisor. Unfor­tunately, hostile environment harassment is much more prevalent, partially because the standards and consequences are more varied. Actual case situations illustrate how the hostile environment standard has been used.

Workplace Sexual Harassments

In 2005/06, 14,250 claims were lodged with employment tribunals on the grounds of sex discrimination. In the same year, 17 per cent of sex discrimination claims disposed of was successful at tribunal and 13 per cent were ACAS conciliated settlements (ETS, 2006). It is not possible to say how many of these cases involved sexual harassment. However, where records show that compensation was awarded by the tribunal in cases with sex discrimination jurisdictions in 2005, 18 per cent of awards were for sexual harassment (34 out of 189) (IRS, 2006). It is thought that the numbers of complaints which are registered with employment tribunals represent only a fraction of the sexual harassment experienced in the UK (EOC, 2005) but from these complaints it is possible to determine that women and men, across occupations and industries, are affected by it.

According to Sexual Harassment Law, 1976 – Williams v. Saxbe – Court recognized sexual harassment as a form of sex discrimination when sexual advances by male supervisor towards female employee, if proven, would be deemed an artificial barrier to employment placed before one gender and not another. Regardless of the type of sexual harassment, it is apparent that sexual harassment has significant consequences on the organization, other employees, and especially those harassed. Follow-up interviews and research with victims of sexual harassment reveal that the harassment has both job-related and psy­chological effects (Munson, Hulin & Drasgow, 2000). Also, harassment even has a ripple effect on others who fear being harassed or view their employer more negatively if prompt, remedy actions do not occur. Thus, how employers respond to sexual harassment co plaints is crucial for both legal reasons and employee morale.

Legal Standards on Sexual Harassment

Directive 2002/73/EC of the European Parliament contains a number of elements, including:

Definitions of sexual harassment in the Workplace - the new Directive adds to Article 2(2) of Directive 76/207/EEC by providing definitions of “harassment” and “sexual harassment.” Harassment and sexual harassment are recognized as a form of discrimination on the grounds of sex and thus are contrary to the principle of equal treatment between men and women.
“Harassment” is defined as “where an 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” is defined as “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.”
With reference to the prevention of sexual harassment; Article 2(5) of Directive 2002/ 73/ EC specifies: “Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace.”

Conclusion

To conclude, sexual harassment undermines women’s right to the pursuit of a secure and safe livelihood. The different forms of sexual harassment described above violate workers rights to dignity, damage their attitudes toward work and decrease productivity considerably. Workers are especially vulnerable to sexual harassment because of informal practices of recruitment, lack of documentation of hiring and firing, and the constant fear of job loss. This is a reality not confined to the industrial sectors studied. Regardless, female labor force participation in the formal and informal sectors will presumably continue to rise, as will incidents of harassment unless the underlying reasons are tackled proactively.

Recommendation

ILO research indicates that workplace harassment policies should include four main components: 1) a clearly defined policy statement; 2) a complaints procedure that maintains confidentiality; 3) progressive disciplinary rules; and 4) a training and communication strategy. In addition, any complaint procedure must ensure that the victim is protected from retaliation. The ILO framework (2000) provides a useful model with which to proceed. Concrete recommendations are as follows:

The government in collaboration with women’s and labor rights should draw up a code of conduct that would be applicable and appropriate for the industrial sector.
All factories should put in place a clear and simple complaints procedure. The disciplinary body overseeing such cases should be constituted of persons who will be able to maintain their neutrality during proceedings. The majority of members should be female.
Workers must be assured of full confidentiality.
All personnel in positions of authority should have mandatory gender sensitivity training, especially on the topic of sexual harassment in the workplace.
No procedure will work unless workers are assured of protection from retaliation.
In this respect, the system of hiring and firing workers informally needs to be replaced. Workers should be provided with the appropriate documentation upon hiring. Existing labor laws must be enforced more effectively.
The risk of retaliation outside the workplace is considerable. Gender sensitivity training for police personnel is essential.
The language of the law against sexual harassment should be amended to reflect a less patriarchal orientation toward women.
The provision of company buses should be encouraged.
The provision of women only buses should also be considered.
Improved street lighting and patrolling by police who have undergone special training
Mass media must be sensitized to the specific problems of working women, to which the media appears to contribute with sensationalized coverage.

References

Equal Employment Opportunities Commission (EEOC) (2003) Sexual harassment charges EEOC & FEPAs combined: FY 1992- FY 2002. EEOC: Washington, DC.

Equal Opportunities Commission (EOC). 2002. Policy statement: analysis of sexual harassment tribunal cases.

Employment Tribunals Service (ETS). 2006. Annual report 2005-06.

Glass Ceiling Commission. 1995. A Solid Investment: Make use of the Nation’s Human Capital, Washington D.C: U.S Department of Labor.

ILO. 2000. “Gender Equality, Employment Promotion and Poverty Eradication: An ILO Capacity-Building Program.” Modular Package on Gender, Poverty, and Employment.

IRS. 2006. “Compensation awards 2005.” Equal Opportunities Review. 155: 5-26.

Lavelle, Louis. 2001. “For Female CEO’s, it’s Stingy at the Top,” Business Week, pp.70-71.

Munson, L. J, Hulin, C & Drasgow. F. 2000. “Longitudinal Analysis of Dispositional Influences and Sexual Harassment: Effects on Job and Psychological Outcomes,” Personnel Psychology, 53, pp.21-46.

Raimy, Eric. 2001. “Cultural Captives,” Human Resource Executive, pp.53-55.

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