The Golden Globe awards on 7 January 2018 (USA) were dominated by a movement to tackle sexual harassment, with the majority of actresses wearing black in support, hashtags #timesup and #metoo reigning over Twitter and a powerful speech by Oprah Winfrey.
Whilst the laws and culture in the USA may not be quite the same as in England and Wales, it seems a fitting time to take a look at how employers can take action to avoid allegations of sexual harassment in our jurisdiction.
Sexual harassment occurs where:
- An individual (A) engages in unwanted conduct of a sexual nature; and
- The conduct has the purpose or effect of either violating another individual’s (B's) dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Conduct related to sex which has the purpose of either violating B’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B will amount to harassment.
Where conduct is not shown to have the intention of harassing B, the question of whether the conduct has that effect must be considered. This is generally assessed from B's subjective viewpoint, however, only where it is reasonable for the conduct to have that effect. Therefore, unintentional offence will not amount to harassment if B is being "hypersensitive".
A key factor for employers to appreciate is what constitutes unwanted conduct of a sexual nature. This can consist of verbal, non-verbal or physical conduct and could include:
- Unwelcome sexual advances;
- Attempting to kiss an individual;
- Touching an individual;
- Pestering an individual about their private life;
- Making speculative comments about an individual’s sex life and relationships;
- Making comments about particular physical features (e.g. legs, breasts);
- Sexual jokes;
- Displaying pornographic photographs or drawings;
- Sending e-mails containing material of a sexual nature.
Many of the above examples may simply not be considered to be ‘sexual harassment’ and it is therefore key that employers maintain a culture that does not allow or encourage such behaviour.
The fact that an employee has put up with conduct for years and/or initiated ‘banter’ as a coping strategy does not mean that it cannot be unwanted. Equally, an employee may succeed in a claim for sexual harassment when a consensual relationship ends and the other party's conduct becomes unwanted.
Employers in industries dominated by one particular sex should be particularly vigilant. For example, where a culture of sexual ‘banter’ exists in a male dominated industry and is actively condoned by a male manager, a female employee may feel compelled to join in with, and not obviously take offense at, language and conduct that they otherwise would find demeaning. However, this would not preclude a successful claim.
In any industry, employers should monitor workplace culture, as the role of a potential harasser will also be relevant. For example, it will be harder for an individual to challenge the behaviour of their manager than that of other colleagues, which could lead to unwanted conduct continuing and resulting in a claim.
Simply referring to training and policies is not sufficient – an employer must take steps to ensure compliance with such policies and to address any allegations made with an appropriate procedure.
Less favourable treatment
An employer can also be liable where an employee is subjected to less favourable treatment for rejecting or submitting to harassment, even where the reason for the less favourable treatment is the victim's rejection of, or submission to, harassment from a third party. For example, a claim for harassment could arise where an individual has rejected a manager’s advances and is not promoted, but would have been if the manager’s proposition had been accepted.
The compensation payable as a result of a successful sexual harassment claim can be significant and could be devastating to a small employer. It is therefore vital to ensure that appropriate policies and cultures are put in place, monitored and complied with.
Carla also advises employees regarding discrimination in the workplace of any type. Find out more in the Employment Law for Employees section of the website, call 01603 660 811 or email firstname.lastname@example.org