Laws should specify that once a complainant has brought forth facts from which it can be presumed that there has been sexual harassment, the burden shifts to the other party to prove that there was a legitimate, or non-discriminatory reason for the action. Drafters should be aware of the fact that burdens of proof in sexual harassment cases can provide a significant disincentive for victims to come forward with claims, when not drafted to include burden-shifting provisions. Burden-shifting provisions also provide an incentive for prevention of potentially discriminatory behavior in the first instance.
In discrimination proceedings, after the party contending to be a victim of discrimination establishes facts from which it may be presumed that there has been discrimination, the accused party must prove that there has been no breach of the right of equal treatment.
Except where otherwise provided in this Act, the person alleging a violation of this Act shall bear the burden of presenting a prima facie case of discrimination or of an offence related to discrimination under this Act, whereupon the burden of proof shall shift to the respondent to disprove the allegations.
If the complainant makes out a prima facie case of discrimination--(a) the respondent must prove, on the facts before the court, that the discrimination did not take place as alleged; or(b) the respondent must prove that the conduct is not based on one or more of the prohibited grounds.
Legislation should not require that victims demonstrate proof of psychological or physical injury in order to claim damages for harassment. The focus of legislation should be on the conduct of the harasser and whether the conduct was unwelcome and unreasonable. The United States, among other countries, has determined through judicial opinions that proof of psychological or physical injuries is not necessary to recover damages from an employer under civil sexual harassment law. See: Harris v. Forklift Systems, 510 U.S. 17 (1993); Barriers to Effective Enforcement of Sexual Harassment Law, StopVAW, The Advocates for Human Rights.