Sexual harassment

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Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors.^[1] In most modern legal contexts, sexual harassment is illegal. As defined by the US EEOC, "It is unlawful to harass a person (an applicant or employee) because of that person’s sex." Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Where laws surrounding sexual harassment exist, they generally do not prohibit simple teasing, offhand comments, or minor isolated incidents. In the workplace, harassment may be considered illegal when it is frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the offender being fired or demoted, or when the victim decides to quit the job).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer and harassers or victims can be either male or female.^[2]

It includes a range of actions from mild transgressions to sexual abuse or sexual assault.^[3] Sexual harassment is a form of illegal employment discrimination in many countries, and is a form of abuse (sexual and psychological) and bullying. For many businesses and other organizations, preventing sexual harassment, and defending employees from sexual harassment charges, have become key goals of legal decision-making.

Coining the term and history

+

− The term sexual harassment was used in 1973 in "Saturn's Rings", a report authored by Mary Rowe to the then President and Chancellor of MIT about various forms of gender issues^[4] Rowe has stated that she believes she was not the first to use the term, since sexual harassment was being discussed in women's groups in Massachusetts in the early 1970s, but that MIT may have been the first or one of the first large organizations to discuss the topic (in the MIT Academic Council), and to develop relevant policies and procedures. MIT at the time also recognized the injuries caused by racial harassment and the harassment of women of color which may be both racial and sexual. The President of MIT also stated that harassment (and favoritism) are antithetical to the mission of a university as well as intolerable for individuals.

− − In the book In Our Time: Memoir of a Revolution (1999), journalist Susan Brownmiller quotes the Cornell activists who in 1975 thought they had coined the term sexual harassment: "Eight of us were sitting in an office ... brainstorming about what we were going to write on posters for our speak-out. We were referring to it as 'sexual intimidation,' 'sexual coercion,' 'sexual exploitation on the job.' None of those names seemed quite right. We wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with 'harassment.' 'Sexual harassment!' Instantly we agreed. That's what it was."^[5]

− − These activists, Lin Farley, Susan Meyer, and Karen Sauvigne went on to form Working Women's Institute which, along with the Alliance Against Sexual Coercion, founded in 1976 by Freada Klein, Lynn Wehrli, and Elizabeth Cohn-Stuntz, were among the pioneer organizations to bring sexual harassment to public attention in the late 1970s.

− − Still the term was largely unknown until the early 1990s when Anita Hill witnessed and testified against Supreme Court nominee Clarence Thomas.^[6] Since Hill testified in 1991, the number of sexual harassment cases reported in US and Canada increased 58 percent and have climbed steadily ever since.^[6]

Harassment situations

The incident of sexual harassment may occur in a variety of circumstances. Often, but not always, the perpetrator is in a position of power or authority over the victim (due to differences in age, or social, political, educational or employment relationships) or expecting to receive such power or authority in form of promotion. Forms of harassment relationships include:

The perpetrator can be anyone, such as a client, a co-worker, a parent or legal guardian, relative, a teacher or professor, a student, a friend, or a stranger.
The victim does not have to be the person directly harassed but can be a witness of such behavior who finds the behavior offensive and is affected by it.
The place of harassment occurrence may vary from school, university, workplace and other.
There may or may not be other witnesses or attendances.
The perpetrator may be completely unaware that his or her behavior is offensive or constitutes sexual harassment or may be completely unaware that his or her actions could be unlawful.^[2]
The incident can take place in situations in which the harassed person may not be aware of or understand what is happening.
The incident may be one time occurrence but more often it has a type of repetitiveness
Adverse effects on the target are common in the form of stress and social withdrawal, sleep and eating difficulties, overall health impairment, etc.
The victim and perpetrator can be any gender.
The perpetrator does not have to be of the opposite sex.
The incident can result from a situation where the perpetrator thinks they are making themselves clear, but is not understood the way they intended. The misunderstanding can either be reasonable or unreasonable. An example of unreasonable is when a man holds a certain stereotypical view of a woman such that he did not understand the woman’s explicit message to stop.^[7]

With the advent of the Internet, social interactions, including sexual harassment, increasingly occur online, for example in video games.

Varied behaviors

One of the difficulties in understanding sexual harassment is that it involves a range of behaviors. In most cases (although not in all cases) is difficult for the victim to describe what they experienced. This can be related to difficulty classifying the situation or could be related to stress and humiliation experienced by the recipient. Moreover, behavior and motives vary between individual cases.^{[citation needed]}

Behavioral classes

Dzeich et al. has divided harassers into two broad classes:

Public harassers are flagrant in their seductive or sexist attitudes towards colleagues, subordinates, students, etc.
Private harassers carefully cultivate a restrained and respectable image on the surface, but when alone with their target, their demeanor changes.

Langelan describes three different classes of harassers.^[8]

Predatory harasser who gets sexual thrills from humiliating others. This harasser may become involved in sexual extortion, and may frequently harass just to see how targets respond. Those who don't resist may even become targets for rape.
Dominance harasser: the most common type, who engages in harassing behavior as an ego boost.
Strategic or territorial harassers who seek to maintain privilege in jobs or physical locations, for example a woman's harassment of male employees in a predominantly female occupation.

Prevention

Sexual harassment and assault may be prevented by secondary school,^[9] college,^[10]^[11] and workplace education programs.^[12] At least one program for fraternity men produced "sustained behavioral change."^[10]^[13]

Many sororities and fraternities in the United States take preventative measures against hazing and hazing activities during the participants' pledging processes (which may often include sexual harassment). Many Greek organizations and universities nationwide have anti-hazing policies that explicitly recognize various acts and examples of hazing, and offer preventative measures for such situations.^[14]

Impact

Effects of sexual harassment can vary depending on the individuality of the recipient and the severity and duration of the harassment. Often, sexual harassment incidents fall into the category of the "merely annoying."^{[citation needed]} In other situations harassment may lead to temporary or prolonged stress and/or depression depending on the recipient's psychological abilities to cope and the type of harassment, and the social support or lack of it for the recipient. Psychologists and social workers report that severe/chronic sexual harassment can have the same psychological effects as rape or sexual assault.^[15]^[16] Victims who do not submit to harassment may also experience various forms of retaliation, including isolation and bullying.

As an overall social and economic effect every year sexual harassment deprive women form active social and economic participation, and costs hundreds of millions of dollars in lost educational and professional opportunities for mostly girls and women.^[17] However, the quantity of men implied in these conflicts is significant.

Coping

Sexual harassment, by definition, is unwanted and not to be tolerated but there often are a number of effective ways for offended and injured people to overwhelm harassment psychological effects, remain or return socialization, regain personal relationship feelings when they were affected by the outside relationship trauma, and regain social approval, return ability to concentrate and be productive in educational, work, etc. environments. This may include stress management and therapy, cognitive-behavioral therapy,^[18] friends and family support, etc.

Immediate psychological and legal counseling are suggestive in the happening of the event since self-treatment may not release stress or remove trauma, and simply reporting to authorities may not have the desired effect, be ignored or may further injure the victim at its response, or may lead to harmful social circumstances in relation to creating difficulties in school or workplace, and even firing.

Study on the behaviours women use to manage sexual harassment

A 1991 study done by K.R. Yount found three dominant strategies developed by a sample of women coal miners to manage sexual harassment on the job: the "lady," the "flirt," and the "tomboy." The "ladies" were typically the older women workers who tended to disengage from the men, kept their distance, avoided using profanity, avoided engaging in any behavior that might be interpreted as suggestive. They also tended to emphasize by their appearance and manners that they were ladies. The consequences for the "ladies" were that they were the targets of the least amount of come-ons, teasing and sexual harassment, but they also accepted the least prestigious and lowest-paid jobs.^[19]

The "flirts" were most often the younger single women. As a defense mechanism, they pretended to be flattered when they were the targets of sexual comments. Consequently, they became perceived as the "embodiment of the female stereotype,...as particularly lacking in potential and were given the fewest opportunities to develop job skills and to establish social and self-identities as miners."^[19]

The "tomboys" were generally single women, but were older than the "flirts." They attempted to separate themselves from the female stereotype and focused on their status as coal miners and tried to develop a "thick skin." They responded to harassment with humor, comebacks, sexual talk of their own, or reciprocation. As a result, they were often viewed as sluts or sexually promiscuous and as women who violated the sexual double standard. Consequently, they were subjected to intensified and increased harassment by some men. It was not clear whether the tomboy strategy resulted in better or worse job assignments.^[19]

The findings of this study may be applicable to other work settings, including factories, restaurants, offices, and universities. The study concludes that individual strategies for coping with sexual harassment are not likely to be effective and may have unexpected negative consequences for the workplace and may even lead to increased sexual harassment. Women who try to deal with sexual harassment on their own, regardless of what they do, seem to be in a no-win situation.^[19]

Common effects on the victims

Common psychological, academic, professional, financial, and social effects of sexual harassment and retaliation:

Psychological stress and health impairment
Decreased work or school performance as a result of stress conditions; increased absenteeism in fear of harassment repetition
Firing and refusal for a job opportunity can lead to loss of job or career, loss of income
Having to drop courses, change academic plans, or leave school (loss of tuition) in fear of harassment repetition and/or as a result of stress
Being objectified and humiliated by scrutiny and gossip
Having one's personal life offered up for public scrutiny—the victim becomes the "accused," and his or her dress, lifestyle, and private life will often come under attack.
Becoming publicly sexualized (i.e. groups of people "evaluate" the victim to establish if he or she is "worth" the sexual attention or the risk to the harasser's career)
Defamation of character and reputation
Loss of trust in environments similar to where the harassment occurred
Loss of trust in the types of people that occupy similar positions as the harasser or his or her colleagues, especially in case they are not supportive, difficulties or stress on peer relationships, or relationships with colleagues
Effects on sexual life and relationships: can put extreme stress upon relationships with significant others, sometimes resulting in divorce
Weakening of support network, or being ostracized from professional or academic circles (friends, colleagues, or family may distance themselves from the victim, or shun him or her altogether)
Having to relocate to another city, another job, or another school
Loss of references/recommendations

Some of the psychological and health effects that can occur in someone who has been sexually harassed as a result of stress and humiliation: depression, anxiety and/or panic attacks, sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), alcoholism, feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self-esteem, withdrawal and isolation, overall loss of trust in people, traumatic stress, post-traumatic stress disorder (PTSD), complex post-traumatic stress disorder, suicidal thoughts or attempts, suicide.^[20]^[21]^[22]^[23]^[24]

Post-complaint retaliation and backlash

Retaliation and backlash against a victim are very common, particularly a complainant. Victims who speak out against sexual harassment are often labeled troublemakers who are on their own power trips, or who are looking for attention. Similar to cases of rape or sexual assault, the victim often becomes the accused, with their appearance, private life, and character likely to fall under intrusive scrutiny and attack.^[25] They risk hostility and isolation from colleagues, supervisors, teachers, fellow students, and even friends. They may become the targets of mobbing or relational aggression.^[20]

Women are not necessarily sympathetic to female complainants who have been sexually harassed. If the harasser was male, internalized sexism, and/or jealousy over the sexual attention towards the victim, may encourage some women to react with as much hostility towards the complainant as some male colleagues.^[26] Fear of being targeted for harassment or retaliation themselves may also cause some women to respond with hostility.^[27] For example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women shunned her both at work and in the community—many of these women later joined her suit.^[28] Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.^[27]

Retaliation has occurred when a sexual harassment victim suffers a negative action as a result of the harassment. For example, a complainant be given poor evaluations or low grades, have their projects sabotaged, be denied work or academic opportunities, have their work hours cut back, and other actions against them which undermine their productivity, or their ability to advance at work or school, being fired after reporting sexual harassmentor leading to unemployment as they may be suspended, asked to resign, or be fired from their jobs altogether. Retaliation can even involve further sexual harassment, and also stalking and cyberstalking of the victim.^[26]^[27] Moreover, a school professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can use their power to see that a victim is never hired again, or never accepted to another school.

Of the women who have approached her to share their own experiences of being sexually harassed by their teachers, feminist and writer Naomi Wolf writes,

"I am ashamed of what I tell them: that they should indeed worry about making an accusation because what they fear is likely to come true. Not one of the women I have heard from had an outcome that was not worse for her than silence. One, I recall, was drummed out of the school by peer pressure. Many faced bureaucratic stonewalling. Some women said they lost their academic status as golden girls overnight; grants dried up, letters of recommendation were no longer forthcoming. No one was met with a coherent process that was not weighted against them. Usually, the key decision-makers in the college or university—especially if it was a private university—joined forces to, in effect, collude with the faculty member accused; to protect not him necessarily but the reputation of the university, and to keep information from surfacing in a way that could protect other women. The goal seemed to be not to provide a balanced forum, but damage control."^[29]

Another woman who was interviewed by Helen Watson, a sociologist, reported that, "Facing up to the crime and having to deal with it in public is probably worse than suffering in silence. I found it to be a lot worse than the harassment itself."^[30]

Organizational policies and procedures

Most companies have policies against sexual harassment, however these policies are not designed and should not attempt to "regulate romance" which goes against human urges.^[31]

Act upon a report of harassment inside the organization should be:

The investigation should be designed to obtain a prompt and thorough collection of the facts, an appropriate responsive action, and an expeditious report to the complainant that the investigation has been concluded, and, to the full extent appropriate, the action taken.
— Mark I. Schickman, Sexual Harassment. The employer's role in prevention. American Bar Association^[31]

When organizations do not take the respective satisfactory measures for properly investigating, stress and psychological counseling and guidance, and just deciding of the problem this could lead to:

Decreased productivity and increased team conflict
Decreased study / job satisfaction
Loss of students / staff. Loss of students who leave school and staff resignations to avoid harassment. Resignations/firings of alleged harassers.
Decreased productivity and/or increased absenteeism by staff or students experiencing harassment
Decrease in success at meeting academic and financial goals
Increased health care costs and sick pay costs because of the health consequences of harassment and/or retaliation
The knowledge that harassment is permitted can undermine ethical standards and discipline in the organization in general, as staff and/or students lose respect for, and trust in, their seniors who indulge in, or turn a blind eye to, or treat improperly sexual harassment
If the problem is ignored or not treated properly, a company's or school's image can suffer
High jury awards for the employee, attorney fees and litigation costs if the problem is ignored or not treated properly (in case of firing the victim) when the complainants are advised to and take the issue to court.^[23]^[24]^[32]^[6]^[33]^[34]^[35]

Studies show that organizational climate (an organization’s tolerance, policy, procedure etc.) and workplace environment are essential for understanding the conditions in which sexual harassment is likely to occur, and the way its victims will be affected (yet, research on specific policy and procedure, and awareness strategies is lacking). Another element which increases the risk for sexual harassment is the job’s gender context (having few women in the close working environment or practicing in a field which is atypical for women).^[36]

According to Dr. Orit Kamir, the most effective way to avoid sexual harassment in the work place, and also influence the public’s state of mind, is for the employer to adopt a clear policy prohibiting sexual harassment and to make it very clear to their employees. Many women prefer to make a complaint and to have the matter resolved within the workplace rather than to "air out the dirty laundry" with a public complaint and be seen as a traitor by colleagues, superiors and employers, adds Kamir.^[37]^[38]

Most prefer a pragmatic solution that would stop the harassment and prevent future contact with the harasser rather than turning to the police. More about the difficulty in turning an offence into a legal act can be found in Felstiner & Sarat’s (1981) study,^[39] which describes three steps a victim (of any dispute) must go through before turning to the justice system: naming – giving the assault a definition, blaming – understanding who is responsible for the violation of rights and facing them, and finally, claiming – turning to the authorities.

Evolution of sexual harassment law in different jurisdictions

In India, the case of Vishaka Vs. State of Rajasthan in 1997 has been credited with establishing sexual harassment as illegal.^[40] In Israel, the 1988 Equal Employment Opportunity Law made it a crime for an employer to retaliate against an employee who had rejected sexual advances, but it wasn't until 1998 that the Israeli Sexual Harassment Law made such behavior illegal.^[41]

In May 2002, the European Union Council and Parliament amended a 1976 Council Directive on the equal treatment of men and women in employment to prohibit sexual harassment in the workplace, naming it a form of sex discrimination and violation of dignity. This Directive required all Member States of the European Union to adopt laws on sexual harassment, or amend existing laws to comply with the Directive by October 2005.^[42]

In 2005, China added new provisions to the Law on Women's Right Protection to include sexual harassment.^[43] In 2006 "The Shanghai Supplement" was drafted to help further define sexual harassment in China.^[44]

Varied legal guidelines and definitions

The United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women defines sexual harassment of women to include:

"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."

While such conduct can be harassment of women by men, many laws around the world which prohibit sexual harassment recognize that both men and women may be harassers or victims of sexual harassment. However, most claims of sexual harassment are made by women.^[45]

There are many similarities, and also important differences in laws and definitions used around the world.

Australia

The Sex Discrimination Act 1984 defines sexual harassment as "... unwanted conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."

Czech Republic

Undesirable behavior of a sexual nature at the workplace if such conduct is unwelcome, unsuitable or insulting, or if it can be justifiably perceived by the party concerned as a condition for decisions affecting the exercise of rights and obligations ensuring from labor relations.^[46]

Denmark

Sexual harassment is defined as, when any verbal, non-verbal or physical action is used to change a victim's sexual status against the will of the victim and resulting in the victim feeling inferior or hurting the victim's dignity. Man and woman are looked upon as equal, and any action trying to change the balance in status with the differences in sex as a tool, is also sexual harassment. In the workplace, jokes, remarks, etc., are only deemed discriminatory if the employer has stated so in their written policy. Women are viewed as being responsible for confronting harassment themselves, such as by slapping the harasser in the face. Law number 1385 of December 21, 2005 regulates this area.^[47]

France

Until May 4, 2012, article 222-33 of the French Criminal Code described sexual harassment as, "The fact of harassing anyone in order to obtain favors of a sexual nature...".^[48] Since 2002, it recognized the possibility of sexual harassment between co-workers and not only by supervisors. On May 4, 2012, the http://www.conseil-constitutionnel.fr (French supreme Court) quashed the definition of the criminal code as being too vague.^[49] The 2012 decision resulted from a law on priority preliminary rulings on the issue of constitutionality. As a consequence to this decision, all pending procedures before criminal courts are cancelled. Several feminists NGO, such as AFVT criticized this decision. A new law should be voted rapidly according to the declarations of the President François Hollande, the Minister of Justice (Christine Taubira) and the Minister of Equality (Najat Belkacem). In addition to criminal provisions, the French labor code also prohibits sexual harassment.^[50] The legislator voted a law in 2008 ^[51] that copied the 2002/73/EC Directive ^[52] definition without modifying the French Labour Code.

India

Sexual harassment in India is termed "Eve teasing" and is described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature and/or passing sexually offensive and unacceptable remarks. The critical factor is the unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator.^[40] According to the Indian constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 and her right to life and live with dignity under Article 21.^[53]

In April 2013, India enacted its own law on sexual harassment in the workplace - The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Almost 16 years after the Supreme Court's landmark guidelines on prevention of sexual harassment in the workplace (known as the "Vishaka Guidelines"), the Act has endorsed many of the guidelines, and is a step towards codifying gender equality. The Act is intended to include all women employees in its ambit, including those employed in the unorganized sector, as well as domestic workers.

The Act has identified sexual harassment as a violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution; as well as the right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment. The Act also states that the protection against sexual harassment and the right to work with dignity are universally recognized human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India.^[54]

In 1997, the Supreme Court of India in a Public Interest Litigation, defined sexual harassment at workplace, preventive measures and redress mechanism. The judgement is popularly known as Vishaka Judgement.^[55]

Israel

The 1998 Israeli Sexual Harassment Law interprets sexual harassment broadly, and prohibits the behavior as a discriminatory practice, a restriction of liberty, an offence to human dignity, a violation of every person's right to elementary respect, and an infringement of the right to privacy. Additionally, the law prohibits intimidation or retaliation that accommodates sexual harassment. Intimidation or retaliation thus related to sexual harassment are defined by the law as "prejudicial treatment".^[41]

Pakistan

Pakistan has adopted a Code of Conduct for Gender Justice in the Workplace that will deal with cases of sexual harassment. The Alliance Against Sexual Harassment At workplace (AASHA) announced they would be working with the committee to establish guidelines for the proceedings. AASHA defines sexual harassment much the same as it is defined in the U.S. and other cultures.^[56]

Philippines

The Anti-Sexual Harassment Act of 1995 was enacted "primarily to protect and respect the dignity of workers, employees, and applicants for employment as well as students in educational institutions or training centers. This law, consisting of ten sections, provides for a clear definition of work, education or training-related sexual harassment and specifies the acts constituting sexual harassment. It likewise provides for the duties and liabilities of the employer in cases of sexual harassment, and sets penalties for violations of its provisions. It is to be noted that a victim of sexual harassment is not barred from filing a separate and independent action for damages and other relief aside from filing the charge for sexual harassment."^[57]

Poland

There is no special provision in the employment law that provides for moral or sexual harassment; however it is commonly accepted by the jurisprudence, that sexual harassment occurs when the employee is subjected to acts of another person in order to obtain favours of a sexual nature. Moral harassment occurs when en employee is subjected to acts which may result in a deterioration of his/her conditions of employment or undermine his/her rights and dignity as well as affect his/her physical or moral health. These definitions are not legal ones, but definitions accepted by the jurisprudence.^[46]

Russia

In the Criminal Code, Russian Federation, (CC RF), there exists a law which prohibits utilization of an office position and material dependence for coercion of sexual interactions (Article 118, current CC RF). However, according to the Moscow Center for Gender Studies, in practice, the courts do not examine these issues.^[58]

The Daily Telegraph quotes a survey in which "100 per cent of female professionals [in Russia] said they had been subjected to sexual harassment by their bosses, 32 per cent said they had had intercourse with them at least once and another seven per cent claimed to have been raped."^[59]

Switzerland

A ban on discrimination was included in the Federal Constitution (Article 4, Paragraph 2 of the old Federal Constitution) in 1981 and adopted in Article 8, paragraph 2 of the revised Constitution. The ban on sexual harassment in the workplace forms part of the Federal Act on Gender Equality (GEA) of 24 March 1995, where it is one of several provisions which prohibit discrimination in employment and which are intended to promote equality. Article 4 of the GEA defines the circumstances, Article 5 legal rights and Article 10 protection against dismissal during the complaints procedure. Article 328, paragraph 1 of the Code of Obligations (OR), Article 198 (2) of the Penal Code (StGB) and Article 6, paragraph 1 of the Employment Act (ArG) contain further statutory provisions on the ban on sexual harassment. The ban on sexual harassment is intended exclusively for employers, within the scope of their responsibility for protection of legal personality, mental and physical well-being and health.

Article 4 of the GEA of 1995 defines sexual harassment in the workplace as follows: "Any behaviour of a sexual nature or other behaviour attributable to gender which affronts the human dignity of males and females in the workplace. This expressly includes threats, the promise of advantages, the application of coercion and the exercise of pressure to achieve an accommodation of a sexual nature."

United Kingdom

The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986.^[60] It states that harassment occurs where there is unwanted conduct on the ground of a person's sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If an employer treats someone less favourably because they have rejected, or submitted to, either form of harassment described above, this is also harassment.^[61]

United States

Evolution of sexual harassment law

Workplace

In the US, the Civil Rights Act of 1964 prohibits employment discrimination based on race, sex, color, national origin or religion. Initially only intended to combat sexual harassment of women,{42 U.S.C. § 2000e-2} the prohibition of sex discrimination covers both females and males. This discrimination occurs when the sex of the worker is made as a condition of employment (i.e. all female waitpersons or male carpenters) or where this is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job (such as height and weight limits).

Barnes v. Train (1974) is commonly viewed as the first sexual harassment case in America, even though the term "sexual harassment" was not used.^[62] The term "sexual harassment" was coined and popularized by Lin Farley in 1975, based on a pattern she recognized during a 1974 Cornell University class she taught on women and work.^[63] In 1976, Williams v. Saxbe established sexual harassment as a form of sex discrimination when sexual advances by a male supervisor towards a female employee, if proven, would be deemed an artificial barrier to employment placed before one gender and not another. In 1980 the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964. In the 1986 case of Meritor Savings Bank v. Vinson, the Supreme Court first recognized "sexual harassment" as a violation of Title VII, established the standards for analyzing whether the conduct was welcome and levels of employer liability, and that speech or conduct in itself can create a "hostile environment". The Civil Rights Act of 1991 added provisions to Title VII protections including expanding the rights of women to sue and collect compensatory and punitive damages for sexual discrimination or harassment, and the case of Ellison v. Brady resulted in rejecting the reasonable person standard in favor of the "reasonable woman standard" which allowed for cases to be analyzed from the perspective of the complainant and not the defendant.^[64] Also in 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action status paving the way for others. Seven years later, in 1998, through that same case, new precedents were established that increased the limits on the "discovery" process in sexual harassment cases, that then allowed psychological injuries from the litigation process to be included in assessing damages awards. In the same year, the courts concluded in Faragher v. City of Boca Raton, Florida, and Burlington v. Ellerth, that employers are liable for harassment by their employees.^[65]^[66] Moreover, Oncale v. Sundowner Offshore Services set the precedent for same-sex harassment, and sexual harassment without motivation of "sexual desire", stating that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.

In the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the standard for retaliation against a sexual harassment complainant was revised to include any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination.

During 2007 alone, the U.S. Equal Employment Opportunity Commission and related state agencies received 12,510 new charges of sexual harassment on the job.^[67]

Education

Title IX of the Education Amendments of 1972 (United States) states "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

In Franklin v. Gwinnett County Public Schools (1992), the U.S. Supreme Court held that private citizens could collect damage awards when teachers sexually harassed their students.^[68] In Bethel School District No. 403 v. Fraser (1986) the courts ruled that schools have the power to discipline students if they use "obscene, profane language or gestures" which could be viewed as substantially interfering with the educational process, and inconsistent with the "fundamental values of public school education."^[69] Under regulations issued in 1997 by the U.S. Department of Education, which administers Title IX, school districts should be held responsible for harassment by educators if the harasser "was aided in carrying out the sexual harassment of students by his or her position of authority with the institution."^[70] In Davis v. Monroe County Board of Education, and Murrell v. School Dist. No. 1, 1999, schools were assigned liability for peer-to-peer sexual harassment if the plaintiff sufficiently demonstrated that the administration's response shows "deliberate indifference" to "actual knowledge" of discrimination.^[71]^[72]

Additionally

There are a number of legal options for a complainant in the U.S.: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc.^[73] Not all sexual harassment will be considered severe enough to form the basis for a legal claim. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law.^[17] Many more experienced sexual harassment than have a solid legal case against the accused. Because of this, and the common preference for settling, few cases ever make it to federal court.^[73] The section below "EEOC Definition" describes the legal definitions that have been created for sexual harassment in the workplace. Definitions similar to the EEOC definition have been created for academic environments in the U.S. Department of Education Sexual Harassment Guidance.^[74]

EEOC Definition

The Equal Employment Opportunity Commission claims that it is unlawful to harass an applicant or employee of any sex in the work place. The harassment could include sexual harassment. The EEOC says that the victim and harasser could be any gender and that the other does not have to be of the opposite sex. The law does not ban offhand comments, simple teasing, or incidents that aren't very serious. If the harassment gets to the point where it creates a harsh work environment, it will be taken care of.^[2] In 1980, the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

Submission to such conduct was made either explicitly or implicitly a term or condition of an individual's employment,
Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or
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.

1. and 2. are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion".

Type 3. known as "hostile work environment," is by far the most common form. This form is less clear cut and is more subjective.^[26]

Note: a workplace harassment complainant must file with the EEOC and receive a "right to sue" clearance, before they can file a lawsuit against a company in federal court.^[17]

Sex discrimination can take two forms, either 1) "Hostile Work Environment Harassment" or 2) "Quid Pro Quo Harassment." ^[75]

Quid pro quo sexual harassment

Quid pro quo means "this for that". In the workplace, this occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. For example, a supervisor promises an employee a raise if he or she will go out on a date with him or her, or tells an employee he or she will be fired if he or she doesn't sleep with him or her.^[76] Quid pro quo harassment also occurs when an employee makes an evaluative decision, or provides or withholds professional opportunities based on another employee's submission to verbal, nonverbal or physical conduct of a sexual nature. Quid pro quo harassment is equally unlawful whether the victim resists and suffers the threatened harm or submits and thus avoids the threatened harm.^[77]

Hostile environment sexual harassment

This occurs when an employee is subjected to comments of a sexual nature, unwelcome physical contact, or offensive sexual materials as a regular part of the work environment. For the most part, a single isolated incident will not be enough to prove hostile environment harassment unless it involves extremely outrageous and egregious conduct. The courts will try to decide whether the conduct is both "serious" and "frequent." Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.^[78] Probably the most famous hostile environment sexual harassment case to date is Jenson v. Eveleth Taconite Co. which inspired the movie North Country.

The line between "quid pro quo" and "hostile environment" harassment is not always clear and the two forms of harassment often occur together. For example, an employee's job conditions are affected when a sexually hostile work environment results in a constructive discharge. At the same time, a supervisor who makes sexual advances toward a subordinate employee may communicate an implicit threat to retaliate against her if she does not comply.^[79]

"Hostile environment" harassment may acquire characteristics of "quid pro quo" harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred."

Gender discrimination

Gender discrimination is a subset of sex discrimination. It is often non-sexual but is nonetheless directed at a person because of that person's sex. Examples of discriminatory comments and behaviors include employers:

Asking whether an employment candidate is married or plans on having children;
Making reference to an employee "PMS"ing;
Claiming that a woman should be more feminine and wear makeup; Claiming that a person isn't fulfilling certain gender role;
Calling an effeminate male a "fairy," or "prissy" or stating that he should ‘act more like a man;’
Refusing to hire a man in a "woman’s job" and vice versa;
Retaliating against an employee for assisting in or cooperating with an investigation or lawsuit based upon gender discrimination.^[75]

Sexual orientation discrimination

In the USA, there are no federal laws prohibiting discrimination against employees based on their sexual orientation. However, Executive Order 13087, signed by President Bill Clinton, outlaws discrimination based on sexual orientation against federal government employees. If a small business owner owns his or her business in a state where there is a law against sexual orientation discrimination, the owner must abide to the law regardless of there not being a federal law. Twenty states and the District of Columbia have laws against this form of discrimination in the workplace. These states include California, Connecticut, Colorado, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.^[80] For example, California has laws in place to protect employees who may have been discriminated against based upon sexual orientation or perceived sexual orientation. California law prohibits discrimination against those "with traits not stereotypically associated with their gender," such as mannerisms, appearance, or speech. Sexual orientation discrimination comes up, for instance, when employers enforce a dress code, permit women to wear makeup but not men, or require men and women to only use restrooms designated for their particular sex regardless of whether they are transgendered.^[75]

Retaliation

Retaliation has occurred when an employee suffers a negative action after he or she has made a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities. Negative actions can include being fired, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment—any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination. (See Burlington Northern & Santa Fe Railway Co. v. White^[81]) Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Also, retaliation is illegal even if the original charge of sexual harassment was not proven.

Criticism

Though the phrase "sexual harassment" is generally acknowledged to include clearly damaging and morally deplorable behavior, its boundaries can be broad and controversial. Accordingly, misunderstandings can abound. Moreover, sexual harassment law has been highly criticized by experts, such as the criminal defense lawyer Alan Dershowitz and the legal writer and libertarian Eugene Volokh, for imposing on the right to free speech.^[82]

Prof. in organizational studies Jana Raver from the Queen's School of Business criticized sexual harassment policy in the Ottawa Business Journal as helping maintain archaic stereotypes of women as "delicate, asexual creatures" who require special protection when at the same time complaints are lowering company profits.^[33] Camille Paglia says that young girls can end up acting in such ways as to make sexual harassment easier, such that for example, by acting "nice" they can become a target. Paglia commented in an interview with Playboy, "Realize the degree to which your niceness may invoke people to say lewd and pornographic things to you--sometimes to violate your niceness. The more you blush, the more people want to do it."^[83]

Other critics assert that sexual harassment is a very serious problem, but current views focus too heavily on sexuality rather than on the type of conduct that undermines the ability of women or men to work together effectively. Viki Shultz, a law professor at Yale University comments, "Many of the most prevalent forms of harassment are designed to maintain work-particularly the more highly rewarded lines of work-as bastions of male competence and authority."^[84] Feminist Jane Gallop sees this evolution of the definition of sexual harassment as coming from a "split" between what she calls "power feminists" who are pro-sex (like herself) and what she calls "victim feminists," who are not. She argues that the split has helped lead to a perversion of the definition of sexual harassment, which used to be about sexism but has come to be about anything that's sexual.^[85]

There is also concern over abuses of sexual harassment policy by individuals as well as by employers and administrators using false and/or frivolous accusations as a way of expelling employees they want to eliminate for other reasons. These employees often have virtually no recourse thanks to the at-will law in most US states.^[86]

O'Donohue and Bowers outlined 14 possible pathways to false allegations of sexual harassment: "lying, borderline personality disorder, histrionic personality disorder, psychosis, gender prejudice, substance abuse, dementia, false memories, false interpretations, biased interviews, sociopathy, personality disorders not otherwise specified."^[87]

There is also discussion of whether some recent trends towards more revealing clothing and permissive habits have created a more sexualized general environment, in which some forms of communication are unfairly labeled harassment, but are simply a reaction to greater sexualization in everyday environments.^[88]

There are many debates about how organizations should deal with sexual harassment. Some observers feel strongly that organizations should be held to a zero tolerance standard of "Must report - must investigate - must punish."

Others write that those who feel harassed should in most circumstances have a choice of options.^[38]^[89]