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Overview and Definition

Laws prohibiting sexual harassment emerged in the context of the discrimination and outright violence that women experience in the workplace. Workplace sexual harassment law is by far the most developed and most commonplace around the world. In the United States, where sexual harassment laws and judicial decisions were first developed in the 1970s, courts recognized that women experienced harassment in two common forms. First, quid pro quo harassment, where the victim’s refusal or acceptance of behavior influences decisions concerning her employment or conditions of employment, e. g. a manager tells his assistant, “Perform a sexual favor for me and you will [/or you will not] get promoted.” Second, hostile work environment claims, in which the harasser’s or harassers’ behavior creates an intimidating, hostile, degrading, humiliating, or offensive environment, e.g., male employees make daily comments over a period of time about the sexual life and body of their female co-worker. (See: Williams v. Saxbe, 413 F. Supp 654 (Ct. App. D.C. 1976))


Definition

Legal definitions of sexual harassment in the workplace should include the following elements:

(See: What is Sexual Harassment, StopVAW, The Advocates for Human Rights.

Workplace laws should also reflect the General Principles for sexual harassment laws discussed in that section)

Legal definitions should cover all work-related activities as well as a wide array of work-based relationships, not solely supervisors harassing employees.

CASE STUDY – New South Wales

In New South Wales, Australia, workplace sexual harassment is included in broad anti-discrimination legislation and the law provides a detailed exposition of where sexual harassment might occur and by whom it might be perpetrated.

(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person, or
(b) a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

(7) It is unlawful for a member of either House of Parliament to sexually harass:

(a) a workplace participant at a place that is a workplace of both the member and the workplace participant, or
(b) another member of Parliament at a place that is a workplace of both members.

(8) It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant.

(9) In this section: “place” includes a ship, aircraft or vehicle. “workplace” means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant. “workplace participant” means any of the following:

(a) an employer or employee,
(b) a commission agent or contract worker,
(c) a partner in a partnership,
(d) a person who is self-employed,
(e) a volunteer or unpaid trainee.

(10) Without limiting the definition of “workplace”, the workplace of a member of either House of Parliament is taken to include the following:

(a) the whole of Parliament House,
(b) any ministerial office or electoral office of the member,
(c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.
(See: Anti-Discrimination Act, sec. 22B)

The New South Wales law also covers harassment and discrimination in a multitude of other areas, including education, sport, provision of goods and services, and property transactions. Judicial decisions in Australia have enforced these types of provisions. The Australian Department of Defense was held liable for sexual harassment by one of its employees even when the most serious incident took place at a private party hosted in a private home by other department employees. See: Lee v. Smith & Ors, FMCA 59 (Australia 2007).

 

Next Topic   Theories of Workplace Sexual Harassment