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Theories of Workplace Sexual Harassment

Laws that protect workers from sexual harassment may reflect different theories of sexual harassment. Laws may treat sexual harassment as discrimination based on sex, as an offense against dignity, or as an issue of health and safety in the workplace. In many developing countries, sexual harassment is viewed as an offense against dignity that results in criminal punishment for the perpetrators. Laws in the United States are based on a view of sexual harassment as a form of discrimination resulting in employer liability. In many European countries, sexual harassment law appears to incorporate the discrimination perspective, the dignity perspective, and the health and safety perspective.

Since the 1980s in Europe, there has been an increasing focus on behaviors described as “moral harassment,”  “mobbing,” or “workplace bullying.” (See: The Mobbing Encyclopedia; EIRO Online, Increasing focus on workplace ‘mobbing’, 2004) By de-emphasizing the issue of gender, this approach moves harassment law away from a theory of discrimination and violence against women toward broader questions of individual dignity and health and safety on the job. One positive result of such an approach is that it may be more inclusive of a wide variety of harassment claims, e.g. harassment claims made by a victim against an individual of the same gender. However, this approach shifts the focus away from an underlying cause of much sexual harassment, the subordination of women to men in the workplace. The workplace bullying concept often also includes a health component as well: degrading treatment or “psychoterror” in the workplace may be regulated in part due to the effects of such treatment on the mental health of workers.

The three dominant conceptions of sexual harassment—a form of discrimination, an offense against dignity, and a health and safety violation—need not be understood as mutually exclusive approaches to sexual harassment law. National laws in all European Union member states must comply with the Council of the European Union Directive 2006/54/EC, which characterizes sexual harassment as both a form of sex discrimination and a violation of dignity in the workplace. For example, the French Penal Code, in article 222-33, prohibits both “sexual harassment” and “moral harassment” which is defined as a violation of dignity, a danger to health, and a form of discrimination. The prohibited conduct does not necessarily have to be related to the gender of the victim. Adapted from: Sexual Harassment: General Information, StopVAW, The Advocates for Human Rights.

CASE STUDY: Northern Ireland expands its definition of sexual discrimination in the workplace

In 2008, Northern Ireland made significant updates to the employment provisions of the Sex Discrimination (Northern Ireland Order 1976.The Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 Act broadened the definition of “sex harassment” to include any unwanted conduct that is “related to” a woman’s sex or that of another person, replacing the old language of sex discrimination as unwanted conduct “on the ground of” a person’s sex.  The amendments also made clear the responsibility of employers to take practical steps to protect their employees from harassment from third parties (such as clients and customers). The Equality Commission for Northern Ireland released a brief to employers about the changes in legislation, offering descriptive examples illegal conduct and how the law should be implemented. (Equality Commission for Northern Ireland, Sex Equality Legislation: Update for Employers (2008). Available in English

 

Equality Commission for Northern Ireland, Model Policy and Procedure (2006).

Equality Commission for Northern Ireland and Labour Relations Agency, Harassment and Bullying in the Workplace (2006).