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Definition

Legal definitions of sexual harassment should:

  • Prohibit conduct that is offensive by its very nature;
  • Prohibit subjectively unwelcome conduct subject to a reasonableness standard;
  • Recognize that harassment may be sexual or sex-based behavior;
  • Recognize that harassment can occur in peer-to-peer relationships as well as in relationships where one party is in a position of authority over the other;
  • Provide examples of conduct that constitutes sexual harassment, including physical conduct and advances, a demand or request for sexual favors, sexually colored remarks, displaying sexually explicit pictures, posters or graffiti, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature;
  • Make clear that a single incident may constitute sexual harassment.
    (See: UN Handbook for legislation on violence against women, sec. 3.4.3.2, 2009; McCann, Sexual Harassment at Work: national and international responses, 2005.)
  • A clear, broad, and detailed definition of sexual harassment is the central component of effective legislation. When legislation on sexual harassment prohibits the practice but does not define it, ambiguity and uncertainty in enforcement can become a problem.

Example:

Viet Nam’s amendments to its Labour Code in 2012 were a positive step in terms of protecting workers from sexual harassment.  The new Labour Code, which came into effect in 2013, explicitly prohibited sexual harassment for the first time. Article 8 strictly prohibits “maltreating a worker, committing sexual harassment at the workplace”; Article 37 provides that an employee, who is maltreated, or sexually harassed, shall have the right of unilateral termination of their labor contract; Article 182 states that a domestic worker shall have an obligation to “report to the authoritative agency if his/her employer  commits acts of sexual harassment”; and Article 183 prohibits any employer from mistreating or sexually harassing his/her domestic workers. However, concerns about the new Labour Code have been raised by civil society in Viet Nam and by the International Labour Organisation because the law does not provide a clear definition of sexual harassment. Without such a definition, the law will be difficult to enforce and disputes between employers and employees will be much more likely. See: Sexual Harassment at the Workplace in Viet Nam: An overview of the legal framework (ILO, 2013).

 

  • Legal definitions of sexual harassment often draw on definitions developed in the context of workplace sexual harassment in the United States. U.S. law defines two common types of sexual harassment, quid pro quo harassment and hostile environment harassment.

o   Quid pro quo harassment: also referred to as abuse of authority, occurs when (1) job benefits, including employment, promotion, salary increases, shift or work assignments, performance expectations and other conditions of employment, are made contingent on the provision of sexual favors, usually to an employer, supervisor or agent of the employer who has the authority to make decisions about employment actions, or (2) the rejection of a sexual advance or request for sexual favors results in a tangible employment detriment

o   Hostile-environment harassment: harassment that does not result in a tangible employment-related action such as displaying pornography, touching and grabbing, and sexual or sex-based remarks or jokes 

  • Legal definitions of sexual harassment should prohibit conduct that is offensive by its very nature, such as physical molestation or sexual blackmail. For example, Israeli sexual harassment law prohibits several types of offensive conduct, including:

blackmail by way of threats, as defined in section 428 of the Penal Law, where the act demanded to be performed by the person is of a sexual character…[and] indecent acts, as defined in sections 348 and 349 of the Penal Law;
(See: Prevention of Sexual Harassment Law, sec.3(a)(1-2))

  • Legal definitions of sexual harassment should provide examples of conduct that constitutes sexual harassment to aid in interpretation of the law.

The International Labour Organization Committee of Experts on the Application of Conventions and Recommendations, for example, defined sexual harassment as any:

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: Sexual Harassment at work: National and international responses, 13, 2005)

  • Legal definitions should make clear that a single incident may constitute sexual harassment.

 

For example, the U.S. state of Minnesota’s Harassment Restraining Order law, makes clear that a single incident can constitute harassment:

The law defines harassment as:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;

(See: Minn. Stat. sec. 609.748, subd. 1.)

 

Mauritius’ law, although more general, also would prohibit a single incident of harassment:

(1) A person sexually harasses another person where, in circumstances in which a reasonable person would have foreseen that the other person would be humiliated, offended or intimidated, he –

(a) makes an unwelcome sexual advance, or an unwelcome request for a sexual favour, to another person; or

(b) engages in any other unwelcome conduct of a sexual nature towards another person.

(2) For the purposes of subsection (1)(b), "conduct" includes making or issuing an unwelcome oral or written statement of a sexual nature to a person or in the presence of a person.

(See: Equal Opportunities Bill Art. 25.)

 

 

Even when this principle is not clearly delineated in law, courts generally find that certain conduct is so severe or offensive that it need happen only once in order to be considered sexual harassment. In a 1995 case in the UK, Insitu Cleaning Co. Ltd. V. Heads, the court affirmed a lower tribunal’s judgment that a younger male employer’s single statement to an older female employee about her breasts, made in the presence of other employees, was sufficient to constitute sexual harassment and to merit an award of damages.

Legal definitions of sexual harassment should prohibit subjectively unwelcome conduct subject to a reasonableness standard, so as to “permit consensual sexual behavior while prohibiting mistreatment.” See Sexual Harassment at Work: National and international responses, 3, 2005. (Note that drafters will need to reconsider “unwelcomeness” in the context of school/sporting sex harassment).

Legal definitions of sexual harassment should address harassment using internet-based technologies, such as email and social media platforms like Twitter and Facebook, sometimes known as cyber sexual harassment.

Case Study – Addressing Cyber Sexual Harassment

Sexual harassment legislation has developed over the decades with a focus on the setting in which the harassment takes place, for instance the workplace, schools, housing or sporting facilities. However, with the emergence of new technologies that allow for instantaneous global communication sexual harassment has moved out of these traditional settings into cyberspace. Cyber harassment can be even more severe than harassment in “traditional” settings given that the harasser often is anonymous, the effects of the harassment are amplified through dissemination to a potentially global audience, and the harassment may be permanent, in that it exists on a site where it may be difficult to remove. (See: Mary Anne Franks, Sexual Harassment 2.0, 71 Maryland Law Review 2012, pp. 655-704; StopVAW, CyberStalking a Growing issue for the Safety of Women, The Advocates for Human Rights (2011)).

Cyber sexual harassment often is addressed through criminal laws or civil torts such as stalking, bullying, or invasion of privacy. Many US states have adopted criminal laws that specifically address cyber-harassment. For example, Hawaii’s law prohibits repeatedly making “telephone calls, facsimile transmissions, or any form of electronic communication…, including electronic mail transmissions, without purpose of legitimate communication” and prohibits repeated communication “after being advised by the person to whom the communication is directed that further communication is unwelcome”. Massachusetts law prohibits cyber-harassment “by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.” While these laws provide important remedies for victims, addressing cyber sexual harassment in this way may overlook and leave unaddressed the sex-discrimination aspect of this behaviour.

Some scholars have suggested that laws should move away from legal regimes focused on specific settings and instead create legal regimes that cover multiple settings at once while also asking “whether there is an entity that can exert effective control over the harassing activity.” This might lead to liability for internet service providers or for entities such as Facebook, for example, and require them to institute sexual harassment policies for their websites similar to the way in which employers and schools are required to have sexual harassment policies in many countries. (See: Mary Anne Franks, Sexual Harassment 2.0, 71 Maryland Law Review 2012, pp. 655-704)

 

Unwelcomeness
Laws should require that conduct be subjectively unwelcome for it to constitute harassment. Some legislation requires that a complainant clearly express that conduct is unwelcome for it to be considered sexual harassment.

  • In Iceland, for example “sexual harassment constitutes sexual behaviour that is unreasonable and/or insulting and against the will of those who are subjected to it, and which affects their self–esteem and is continued in spite of a clear indication that this behaviour is unwelcome.” (See: Act on the Equal Status and Equal Rights of Women and Men, Art. 17)

  • In Israel, the law states that sexual harassment constitutes “propositions of a sexual character to a person, where that person has shown to the harasser that he is not interested in the said propositions” or “references directed towards a person, which focus on his sexuality, where that person has shown to the harasser that he is not interested in the said references.” (See: Prevention of Sexual Harassment Law, sec.3(a)3-4) Israel’s law also states that in some cases of particularly vulnerable victims, certain conduct constitutes harassment whether or not the victim expresses that it is unwelcome.

Reasonableness
In general, legislation prohibiting sexual harassment includes provisions indicating that the conduct must be objectively unreasonable for it to constitute harassment. If this requirement is not found in legislation, it will often be imposed by courts when they examine the facts of a case. Malta’s law provides a typical example, stating that it is prohibited:

to subject other persons to any act or conduct with sexual connotations, including spoken words, gestures or the production, display or circulation of any written words, pictures or other material, where the act, words or conduct is unwelcome to the persons to whom they are directed and could reasonably be regarded as offensive, humiliating or intimidating to the persons to whom they are directed.
See: Equality for Men and Women Act , sec. 9(1)(c).

Example: In 2011, Australia amended its law to provide that sexual harassment occurs when a person makes an unwelcome sexual advance, makes an unwelcome request for sexual favours or engages in any other unwelcome conduct of a sexual nature towards another person and a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the other person would be offended, humiliated or intimidated. See: Australian Human Rights Commission, What is Sexual Harassment? (2013).