1. What is Sexual Harassment?
The Lack of a Common Definition
Despite both national and
international efforts to eliminate sexual harassment, there is no single
definition of what constitutes prohibited behavior.
Generally, international instruments define sexual harassment
broadly as a form of violence against women and as discriminatory treatment,
while national laws focus more closely on the illegal conduct.
All definitions, however, are in agreement that the prohibited
behavior is unwanted and causes harm to the victim. At the International
level, the United Nations General
Recommendation 19 to the Convention
on the Elimination of all Forms of Discrimination Against Women
defines sexual harassment as including:
unwelcome sexually determined behavior as physical contact and advances,
sexually colored remarks, showing pornography and sexual demands,
whether by words or actions. Such
conduct can be humiliating and may constitute a health and safety
problem; it is discriminatory when the woman has reasonable ground
to believe that her objection would disadvantage her in connection
with her employment, including recruitment or promotion, or when
it creates a hostile working environment.
Labor Organization (ILO) is a specialized United Nations agency
that has addressed sexual harassment as a prohibited form of sex discrimination
under the Discrimination
(Employment and Occupation) Convention (No. C111). The ILO has made
clear that sexual harassment is more than a problem of safety and health,
and unacceptable working conditions, but is also a form of violence
(primarily against women).
At the regional level,
both the European
Union (EU) and the Council
of Europe (COE) address sexual harassment as illegal behavior. The European Commission of the EU defines sexual
conduct of a sexual nature, or other conduct based on sex affecting
the dignity of women and men at work. This includes unwelcome physical, verbal or
Unlike other international definitions of sexual harassment,
the European Commission also distinguishes three types of harassment:
physical, verbal, and nonverbal sexual harassment and states that there
is a range of unacceptable behavior:
is considered sexual harassment if it is (1) unwanted, improper
or offensive; (2) if the victim’s refusal or acceptance of the behavior
influences decisions concerning her employment or (3) the conduct
creates an intimidating, hostile or humiliating working environment
for the recipient.
definitions of sexual harassment found at the international and regional
level form the international laws that
prohibits sexual harassment.
At the national level, the
United Sates was one of the first countries to define sexual harassment,
as a prohibited form of sex discrimination that violates Title VII of
the Civil Rights Act, a federal law.
The U.S. government body that enforces the Civil Rights Act,
the Equal Employment Opportunity Commission
(EEOC), defines sexual harassment as
sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature,” when
to such conduct is made either explicitly or implicitly a term or
condition of an individual’s employment;
to or rejection of such conduct by an individual is used as the
basis for employment decisions affecting such individual; or
(3) such conduct
has the purpose or effect of unreasonably interfering with an individual’s
work performance or creating an intimidating, hostile or offensive
In addition to national
definitions of sexual harassment, most states in the U.S. also prohibit
sexual harassment, through state laws that
may differ slightly from the federal definition.
In Canada, all labor issues
are within the jurisdiction of the provinces, and each territory or
province administers its own human rights law.
All Canadian human rights acts at the provincial level prohibit
discrimination in employment on the basis of sex.
The Canadian Human Rights Act does not precisely define sexual
harassment, but the Canadian Labor Code defines it explicitly as “any
conduct, comment, gesture or contact of a sexual nature that (a) is
likely to cause offence or humiliation to any employee; and (b) that
might, on reasonable grounds, be perceived by that employee as placing
a condition of a sexual nature on employment or on a opportunity for
training or promotion.”
The U.S. and Canadian
definitions of sexual harassment are found in national
laws and are closely tied to the type of remedy
available to a victim of this form of violence.
Despite the lack of a
universal definition of sexual harassment, there is general consensus
about what constitutes prohibited conduct.
For an action to be considered sexual harassment it must meet
(1) [the action]
is related to sex or sexual conduct;
(2) [the conduct]
is unwelcome, not returned, not mutual; and
(3) [the conduct]
affects the terms or conditions of employment, in some cases including
the work environment itself.
Excerpted from: Shockwaves:
The Global Impact of Sexual Harassment, Susan L. Webb, New York
Harassment is Conduct of a Sexual Nature that Occurs Because of the
Conduct of a
sexual nature includes a range of behaviors or actions, since there
is a very wide range of activities which are expressions of sexuality
or have sexual connotations in our society. Therefore, behavior which may appear relatively innocent (such as
joking, innuendoes, flirting and asking someone on a date) to behavior
which is blatantly illegal (such as forced fondling, attempted or
actual rape and sexual assault) can all constitute conduct of a
sexual nature. In order to qualify as sexual harassment the behavior
must be deliberate and/or repeated.
Some forms of sexual behavior are so offensive that the first
time they occur they are considered deliberate, inappropriate, and
sometimes even illegal actions.
Other behaviors must be repeated over and over again before
they become harassment.Whether a particular behavior is defined
as sexual harassment depends largely on whether the behavior is
unwelcome to the target, along with the
circumstances surrounding those evens.
Unwelcome behaviors, which are considered sexual harassment,
can be of verbal, non-verbal, physical, or
Shockwaves: The Global Impact of Sexual Harassment, Susan L.
Webb, New York 1994.
Conduct that is based
on the person’s sex means that the behavior relates specifically to
the sex of the individuals involved in the incident.
In other words, the offensive behavior references the victim’s
sex (e.g. overt sexual solicitation) or the behavior occurs because
of the sex of the intended victim (e.g. an offensive joke does not
refer to sex, but the joke is played to embarrass the person because
she is a woman).
Harassment is Unwelcome Conduct
Sex-based conduct in
the workplace is unwelcome when (1) an employee does not solicit
or initiate the conduct; and (2) when the employee regards the conduct
as undesirable and offensive.
It is important to note
that persons in position of power within the workplace, such as
supervisors and employers, must ensure that any social contact between
employees is consensual and welcome. Furthermore, even though employees
may not actively object to specific conduct, they may in fact find
the work environment hostile because of the conduct of others.
Frequently employees do not feel safe enough or strong enough to
voice their objections. Particularly if an employee is in a relatively
weak and vulnerable position, she may appear to acquiesce. Because
the employee has appeared to acquiesce, however, this does not mean
that the conduct was consensual or that sexual harassment has not
In Canada, for example,
laws that address sexual harassment do not require the victim to
confront the alleged harasser in order to establish that the behavior
was unwelcome. Additionally, it is not necessary for the victim
of sexual harassment to expressly object to the conduct if a reasonable
person would understand the behavior to be offensive and sexual
in content. In establishing a sexual harassment claim, the fact
that the victim made pervious complaints about the same conduct
is evidence that the conduct was, in fact, unwelcome.
In cases where the behavior
is not self-evidently offensive, however, express objection is required.
In such cases, it is sufficient for a legal claim if the victim
has expressed objection through body language, meaning that a verbal
objection is not necessary.
The Human Rights Commission
of British Colombia, Canada has created a manual, Preventing
Harassment in the Workplace, which provides detailed information
on the obligations of employers as well as the evidence an employee
must submit to make a claim of sexual harassment.
and Frequency of Sexual Harassment
Whether one or a series
of incidents amounts to harassment depends on a balancing of the
severity of the incidents and their frequency. The purpose for
balancing the severity and frequency of the incident is to ensure
that offensive comments are not made in the work environment but
also to protect the employer from liability for every objectionable
A single incident may
constitute harassment, especially if the incident is prolonged,
offensive and very serious in nature. For example, a case in which
a supervisor fondled an employee's breasts would constitute a case
of sexual harassment arising from a single incident.
On the other hand, a
combination of events with varying amounts of seriousness and frequency
may also be harassment. For example, a case in which a manager
repeatedly asked a clerk for a date despite consistent refusals,
told sexually explicit jokes in front of the clerk, and repeatedly
made sexual innuendoes to the clerk to make her blush would also
constitute sexual harassment.
In the U.S. if the behavior
causes someone to take offense, it will be judged whether or not
it is sexual harassment from the perspective of a “reasonable
woman” or in some states, a “reasonable person”. Under the
“reasonable woman” standard, unless one-time unwelcome behavior
is sufficiently severe it must be pervasive or regular to qualify
as sexual harassment. The Equal Employment Opportunity Commission
(EEOC), a U.S. government body which adjudicates sexual harassment
cases, takes the position that "the more severe the harassment,
the less need to show a repetitive series of incidents. This is
particularly true when the harassment is physical."
Harassment Detrimentally Affects the Work Environment
The affront to personal
dignity that occurs as a result of sexual and other types of harassment,
by definition, detrimentally affects the work environment. It is
important to understand that the intent of a person’s behavior,
whether the behavior is face-to-face or behind another employee’s
back may be irrelevant in determining whether or not a behavior
is sexual harassment. What matters is the impact of the behavior
on the work environment. Regardless of intent, the behavior may
be judged on its impact upon the work environment. Therefore, the
statement that the conduct was not intended to have a negative consequence
is not a valid defense of harassing behavior.
A hostile environment
usually requires a pattern of offensive conduct. Isolated or infrequent
incidents of extremely offensive sexual or sex-based verbal conduct,
particularly when perpetrated by a supervisor or coupled with physical
conduct, however, may create a hostile environment.
It is also important
to note that the boundaries of the work environment are not determined
by location. Instead, the boundaries of the work environment are
defined by whether or not the person is doing something related
to his or her job.
For this reason, harassment
can occur in locations outside the traditional work site. The workplace
includes any place where employees happen to be for work related
purposes. This includes traveling to work-related conferences or
branch offices, attending staff parties, attending conferences,
or at the home of a colleague for a work-related activity. The
key to understanding the boundaries of the work environment is to
consider whether the person is in a specific place because of their
job. If the answer is “yes” than any unwanted and offensive sex-based
conduct could be considered sexual harassment.
U.S. and Canadian law,
however, distinguish between the work environment and a situation
in which colleagues or employees meet in a purely private setting,
such as while attending a private party, while on vacation, or while
attending a conference as a hobby. Such circumstances are not considered
“ work." If harassment occurs in these situations, U.S. and Canadian law does not protect people
from the harassment, unless adverse consequences are brought back
to the work environment. For example, a sexual solicitation made
at a private party by a person who works for the same employer would
not give rise to a complaint under the U.S. and Canadian legal systems
unless the person who turned down the solicitation later suffered
adverse consequences a work.
Types of Sexual Harassment
Sexual harassment can
take a variety of forms. It includes both physical violence and
more subtle forms of violence such as coercion or the creation of
a hostile work environment. A hostile work environment includes
situations, for example, when the victim is not appointed to important
committees, does not receive information about training opportunities
or is not considered for promotion because of family responsibilities.
This type of sexual harassment is difficult to document but still
can significantly affect women's work and career paths.
law describes two different forms of sexual harassment:
quid pro quo, and (2) hostile work environment
Quid pro quo is Latin for “this for that” or “something for
something” and refers to an exchange. In this case, the exchange
is between employees, where one provides sexual favors in exchange
for something else, such as favorable treatment in work assignments,
pay or promotion. Quid pro quo sexual harassment occurs
when employment decisions and conditions are based upon whether
as employee is willing to grant sexual favors. Hiring, promotions,
salary increases, shift or work assignments, and performance expectation
are some of the working benefits that can be made conditional on
Quid pro quo cases from the U.S. demonstrate the dynamics
of this type of sexual harassment.
(2) A hostile work environment
is one in which unwelcome conduct of a sexual nature creates an
uncomfortable work environment for some employees. Examples of
this conduct include
sexually explicit talk, sexually provocative photographs, foul or
hostile language or inappropriate touching.
hostile work environment
cases from the U.S. demonstrate the dynamics of this type of sexual
is an Harasser & Who may be Harassed?
It is commonly thought
that workplace sexual harassment is limited to interactions between
male bosses and a female subordinates. This is not true. In fact,
sexual harassment can occur between any co-workers, including the
peer to peer harassment;
subordinate harassment of a supervisor;
men can be sexually harassed by women;
same sex harassment
– men can harass men; women can harass women;
third party harassment; and
offenders can be supervisors, co-workers, or non-employees,
such as customers, vendors, and suppliers.
common perception is that the person who is the recipient of the
behavior is the victim of the sexual harassment. In fact, anyone
who is affected by the offensive conduct, whether they were the
intended “target” or not, is a victim of sexual harassment. The
U.S. Equal Employment Opportunities Commission (EEOC) states, ''the
victim does not have to be the person harassed but could be anyone
affected by the offensive conduct."
there is no “typical harassed woman.” Women of all ages, backgrounds,
races and experience and in every work environment experience sexual
Sexual Harassment about Sex or Power?
According to a 1992
study conducted by the International Labor Organization (ILO), ”Sexual
harassment is inextricably linked with power and takes place in
societies which often treat women as sex objects and second-class
MacKinnon, one of the foremost writers on the topic, describes sexual
harassment as an “explosive combining of unacceptable sexual behavior
and the abuse of power.” A particular incident of harassment may
or may not include any explicitly sexual behavior, but it always
involves some form of abuse of power.
example, when a harasser sabotages a woman’s work, he is not engaging
in any kind of romantic sexual action. He is engaging in aggression.
This situation is no different from that of the street harasser
who comments on a woman’s body as she walks by, the coworker who
won’t stop touching her or the landlord who won’t repair the sink
because she hasn’t been “nice enough” to him. While not one of
these actions is “sexual” in an affectionate or friendly sense,
all are forms of sexual harassment.
It is very important
to closely examine the “sexual” aspect of sexual harassment, because
sexuality is often used as a justification for this social practice.
Confusion about the difference between sexual invitation and sexual
harassment is common.
Many men and women around
the world believe that sexual harassment is a practice based on
simple sexual attraction. It is often seen as an expression of
male interest and a form of flattering sexual attention for women
– a sometimes vulgar but essentially harmless romantic game, well
within the range of normal, acceptable behavior between men and
However, the difference
between invitation and harassment is the use of power. Harassment
is not a form of courtship and it is not meant to appeal to women.
It is designed to coerce women, not to attract them. When the recipient
of sexual harassment has no choice in the encounter, or has reason
to fear the repercussions if she declines, the interaction has moved
out of the realm of invitation and courtship into the arena of intimidation
Confusion about the
dynamics of sexuality and power in sexual harassment prevents women
from reacting to harassers with strong, effective countermeasures.
Adapted from Back
Off! How to Confront and Stop Sexual Harassment and Harassers by