Stop Violence Against Women
Sexual Harassment





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:

such 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.

The International 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 harassment as:

unwanted 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 nonverbal conduct

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:

Conduct 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.

Finally, 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

“[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;

(2) submission 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 working environment.

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 these criteria:

(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 1994.

Sexual Harassment is Conduct of a Sexual Nature that Occurs Because of the Person's Sex

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 visual nature.

Excerpted from: 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).

Sexual 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 occurred. 

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.

Severity 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 remark.

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."

Sexual 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.

U.S. law describes two different forms of sexual harassment:

(1) quid pro quo, and (2) hostile work environment

(1) 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 sexual favors.

Sample 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.

Sample hostile work environment cases from the U.S. demonstrate the dynamics of this type of sexual harassment.

Who 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 following:

·        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.

Another 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."

  Likewise, there is no “typical harassed woman.”  Women of all ages, backgrounds, races and experience and in every work environment experience sexual harassment.

Is 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 citizens.”

Catharine 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.

For 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 women.

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 and aggression.

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 Martha Langelan.

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