Law and sexual harassment
What does international labour law say about sexual harassment at the workplace?
As mentioned before, laws on sexual harassment differ from country to country, and even from culture to culture. However, several global labour and human rights organisations have developed conventions, resolutions and policy statements concerning the topic.
- International Labour Organisation (ILO):
The workers’ group from the International Labour Organisation (ILO) has called for a proposal for a new ILO standard (convention accompanied by a recommendation) on gender-based violence at work. The ILO has now announced that a debate for a convention on sexual harassment and violence in the workplace will be on the agenda in 2018. Currently, the ILO has addressed sexual harassment primarily as a form of discrimination in the workplace.
The major ILO convention addressing sex discrimination is Discrimination (Employment and Occupation) Convention (No.111) which entered into force in 1960. It defines discrimination to include “any distinction, exclusion or preference made on the basis of . . . sex . . . which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”
This convention does not explicitly mention sexual harassment, although a 2003 general observation states that “sexual harassment is a form of sex discrimination and should be addressed within the requirements of the convention.”
- United Nations (UN):
The General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, and elsewhere, and encourages the development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women.
- Regional – Africa:
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa obligates state parties to take appropriate measures to: Eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training Protect women from all forms of abuse (including sexual harassment) Ensure transparency in recruitment, promotion and dismissal of women, and combat and punish sexual harassment in education and the workplace.
- Regional – Europe:
The Charter of Fundamental Rights of the European Union specifically enshrines the right to be free from discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. This principle has been further elaborated through several directives dealing with sexual harassment. These directives require member states to incorporate into national law a number of principles, including encouraging employers to take measures to combat all forms of sexual discrimination and prevent harassment in the workplace.
Sexual harassment, what is our role?
How can employers take precautions against sexual harassment occurring in the workplace?
Every employer (regardless of size) should maintain a workplace that is free of sexual harassment. In some countries, it is a legal obligation, but in all cases, it makes good business sense. If sexual harassment is allowed to flourish in a workplace, there will be a high price to pay in poor employee morale, low productivity, and lawsuits. Additionally, in some countries, an employer can be held liable if sexual harassment occurs and it is found that the employer did not take all reasonable steps to prevent sexual harassment in the workplace.
There are a number of steps that can be taken to reduce the risk of sexual harassment occurring in the workplace. These are some of the recommended steps:
- Adopt a clear sexual harassment policy:
An employee handbook should have a policy devoted to sexual harassment. The policy can be based on the laws of the country, or along with global guidelines. That policy should:
- Define sexual harassment
- State in no uncertain terms that sexual harassment will not be tolerated
- State that wrongdoers will be disciplined or fired
- Set out a clear procedure for filing sexual harassment complaints
- State that any complaint will be fully investigated
- State that there will be no tolerance for retaliation against anyone who complains about sexual harassment.
- Keep in mind that just having a sexual harassment policy is not enough – it needs to be implemented through communication, education and enforcement. For an example of the sexual harassment policy, see below in this section.
- Practical steps in the workplace:
- Train employees: Conduct regular training sessions for employees. These sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, review your complaint procedure, and encourage employees to use it.
- Train supervisors and managers: Conduct regular training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual harassment and explain how to deal with complaints.
- Monitor the workplace: Employers (and supervisors and managers) should get out among employees periodically. They should talk to them about the work environment. They should keep an eye out for offensive posters or other material. The lines of communication should be kept open.
- Take all complaints seriously: If someone complains about sexual harassment, there should be immediate action to investigate the complaint. If the complaint turns out to be valid, the response should be swift and effective.
What can employees/workers do to prevent sexual harassment?
- Insist that their place of work has a sexual harassment policy
- Make sure that they know what their company policy on sexual harassment is
- Make sure that the policy is known and understood by their co-workers, managers and supervisors
- If necessary, organize sessions where the policy is explained and discussed amongst co-workers
- Make sure that the reporting procedures for sexual harassment are properly in place
- Report incidences of sexual harassment.
If I am sexually harassed, what can I do?
Sometimes sexual harassment can be confusing, or scary. You may not know what steps you can take to stop it or report it. You may worry about your job security, or about what your colleagues might say. These are common reactions. Whether you have been harassed continuously over a period of time, or have experienced one short and shocking form of sexual harassment, the result is equally unpleasant. Importantly – you have the right to work in an environment where this does NOT happen.
If the perpetrator seems to have no idea that what he/she has done is inappropriate or unwelcome, you can speak up and let them know what you do not like about their behaviour. You can do this as a form of a warning, before taking other steps. You can also ask a colleague or supervisor to sit with you while you talk to the perpetrator, or even ask them to talk on your behalf. This is your choice. The perpetrator then has no excuse if they continue with the offensive behaviour.
If sexual harassment has taken place and your workplace has a sexual harassment policy, then make sure you follow the guidelines for reporting and/or dealing with the event. Make sure you enlist the correct people to support you through this process.
Make sure you collect as many details as you can (time, place, etc) and if necessary witnesses or evidence (inappropriate pictures etc).
If your company has no set procedure in place for reporting sexual harassment, you should bring your complaint to your immediate supervisor. If your supervisor is the individual committing the harassment, make your complaint to your supervisor’s immediate superior. It is important to make sure that your company’s management is aware of the harassment.
It is the employer’s duty to create a safe workplace. If you are retaliated against or continue to be harassed, report it again.
If your workplace does not deal satisfactorily with the case, you may wish to pursue the matter outside the workplace, by laying a formal criminal or civil charge against the perpetrator.
The same applies if you are self-employed and have been sexually harassed by a client or customer, for example. You can lodge a formal criminal or civil charge against the perpetrator.
You can also seek union assistance if you are a member of a trade union.
If you are in a country where the laws allow, you may bring a civil lawsuit for any injuries you suffered due to the sexual harassment. You do not need to show physical injuries. The most common injuries in a sexual harassment case are the emotional injuries suffered by the victim.
If your sexual harassment suit is successful, your remedies may include:
- Reinstatement, if you lost your job
- Back pay if you lost money or missed out on a raise
- Fringe benefits lost
- Damages for emotional distress
- A requirement that your employer initiate policies or training to stop harassment
Your attorney’s fees and court costs.