Unwelcome, unwanted and increasingly illegal:
Sexual harassment in the workplace
In recent years, growing recognition has been given to a subject that was once taboo: sexual harassment in the workplace. More and more, the problem of unwelcome and unwanted harassment of a sexual nature is being tackled in the legislatures, and visibly, in the courts. This month's interview faces the question of sexual harassment: what it is, where it happens, and what more and more countries are doing about it.
In a recent article in the International Labour Review, Jane Aeberhard-Hodges of the Equality and Human Rights Coordination Branch of the International Labour Organization in Geneva, examined judicial and arbitral trends regarding sexual harassment. In her study, Ms. Hodges found that serious concern with sexual harassment at work is recent, but growing. Twenty years ago, it was not recognized as a problem, the phenomenon was ill-defined and legal protection was almost non-existent. Today, men and women, employers and workers, lawyers and judges need to know what it is, what rules apply, and what limits exist.
Ms. Hodges spoke recently with World of Work magazine on what constitutes sexual harassment, outlined legislative action and judicial decisions concerning the practice and work worldwide and how recent trends show an evolution in social responses to it.
World of Work: We hear much about sexual harassment at work today. What constitutes sexual harassment?
Ms. Hodges:
Most definitions of sexual harassment combine three elements. Accordingly, sexual harassment involves unwanted behaviour of a sexual nature, and a perception by the victim that it has become a condition of work, or creates a hostile, intimidating and humiliating working environment. It can involve physical contact, expression of sexual innuendoes, sexually coloured comments and jokes, the exhibition of pornography, or unnecessary and unwanted comments on a person's appearance. There are many examples throughout the world of well-known cases that constitute sexual harassment. In an overwhelming number of cases, the victims are women, but there are more and more cases of men being harassed by women. There are also cases of "same-sex" sexual harassment.
World of Work: Where does it usually occur and why?
Ms. Hodges:
Sexual harassment occurs all over the world. Many studies show that the primary victims are younger women in their first jobs, or women returning to the workplace after a career break. The victim is usually vulnerable, due to age for instance or employment status. In some cases, the timidity - what you might call society's conditioning - of the victim is also a factor.
World of Work: How pervasive is this problem, especially in the workplace?
Ms. Hodges:
The studies are striking. Millions of women are suffering sexual harassment, as we speak. The problem is how to point them out, even though, as I said, the definition is pretty simple. Studies carried out here in Switzerland, for example, show that even on a confidential basis, few women would make official complaints of being sexually harassed. So, the official figures we have, based on public studies, are probably the tip of the iceberg.
World of Work: Are there still some societies where sexual harassment is tolerated, expected as part of getting a job?
Ms. Hodges:
In some countries, apparently yes. I think the whole idea of droit de cuissage is gone, although some might say that it is still alive in some places but in a different form. But in some cases, it is certain, that sexual harassment occurs, particularly in terms of getting a job. There have been reports that in some European cultures, for example, women find sexual harassment offensive, but accept it as an unpleasant fact of life.
World of Work: In your study, have you seen any kind of increase in reporting of cases?
Ms. Hodges:
Definitely. In fact, the United States Equal Employment Opportunity Commission (EEOC) has published figures in 1996 estimating over 15,000 reported cases. These are allegations and not all of them will be substantiated. But they have seen an enormous increase in such reports, from some 6,000 cases annually reported to the US EEOC in the late 1980s.
World of Work: Until the mid-1980s, few countries had adopted explicit legislation on the subject. What kind of legislation has in the past, or is now being adopted and applied, and how would you characterize the difference between the two?
Ms. Hodges:
The evolution of such legislation over the past 20 years has been significant. Specific laws now address sexual harassment as a wrong and as unacceptable in places of employment. In addition, there are labour codes addressing the issue and laws on human rights and equality covering all aspects of gender-based discrimination. But there are very few international instruments, as I have pointed out in the International Labour Review, that take on sexual harassment specifically at the international level, such as the 1992 General Recommendation under the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW). The ILO is, in fact, the only organization with a Convention containing a provision banning sexual harassment, in this particular case, against indigenous women. We do not, however, have an ILO convention against sexual harassment. Rather, this subject has been treated in ILO Convention No. 111, in the context of sex discrimination.
World of Work: How many countries have taken specific action, adopting legislation regarding sexual harassment, sexual discrimination, etc.?
Ms. Hodges:
The number of countries is adding up. Currently, there are some 36 countries with legislation specifically targeted against sexual harassment. In addition, if you start looking at countries which have very broad health and safety legislation, this could also be extended to cover sexual harassment as a danger to the health, both mental and physical, of an employee. There are also remedies for sexual harassment to be found in implementing workers compensation legislation.
World of Work: What is the driving force behind this upsurge in legislation and official interest in adopting new legislation, or implementing or reinterpreting existing laws and conventions?
Ms. Hodges:
This has to be answered on several levels. First, you cannot deny that society in both developed and developing countries is far more aware today than yesterday that harassment, particularly of women, is a common and dangerous issue in the workplace. Then there is the role played by women's groups, non-governmental organizations and trade unions in the context of this issue. Another example is the international conferences run by the United Nations, such as the Fourth World Conference on Women held in 1995 in Beijing. Delegates to that Conference addressed workplace issues, and the ILO was there, represented, visible, and able to say, yes, we don't have a Convention on this but we have standards which can be used, and have been used. One major impact of the Beijing Conference was to give international recognition to the issue, and to open up a discussion on such issues in the context of women's rights and human rights. Finally, the fact that instead of losing cases, women are increasingly winning them, has had the effect of sparking interest in the public in legal means of gaining redress for sexual harassment.
World of Work: Is the new sense of interest in laws on sexual harassment, coupled with an increasing number of such laws, having a "trickle-down" effect in the workplace, and what is the ILO doing in this area?
Ms. Hodges:
Laws and enforcement procedures are pointless unless they have an impact at the workplace. I think in North America, in Western Europe and in other areas, women are now prepared to make complaints because they see that these do not fall on deaf ears. In many situations, however, the impact has been less striking. That is why working with groups like trade unions is an important strategy of the ILO. Unions in places where a majority of workers are women, vulnerable women, can go out and inform employees of their rights, of existing laws and how they can use them. Another area is among employers. The Bureau for Employers' Activities has just produced a quality brochure which features a whole page on sexual harassment. Also, our work with recently democratized or recently independent countries has led to the rewriting of numerous labour laws, with, in a large number of cases, attention being paid to sexual discrimination in employment. The process is lengthy and involves very specific work, but in the long term it is paying off in its impact and results.
Sexual harassment and the law worldwide:
What are the trends?
Until the mid-1980s few countries had any explicit legislation on sexual harassment, though broader legislation has been increasingly applied to the problem, resulting in relevant jurisprudence. From the early 1990s many more countries have passed specific legislation - some 36 countries now have such legislation. In a recent article in the International Labour Review (ILR), Vol 135 (1996), No. 5, entitled "Sexual harassment in employment: Recent judicial and arbitral trends" Jane Aeberhard-Hodges, an ILO lawyer explains recent trends.
Trends in judicial decisions concerning women workers may be one of the more reliable indicators of womens status - as pointed out in the ILR more than twenty years ago by another ILO lawyer, Felice Morgenstern, writing on women workers and the courts. [Vol.112 (1975), No. 1, July] Then, sexual harassment did not even figure among the subjects taken up. But her point is proven by the topics she did take up then - access to employment, job tenure, equal pay, retirement age, social security, maternity protection and family responsibilities- all problem areas in which there has been enormous progress in 20 years' time, partly thanks to legislation backed up by the courts.
In the more recent article, Ms. Hodges mines a wide range of sources - reported judicial decisions and arbitral awards, academic journals, UN and other international reports, the results of monitoring the implementation of ILO standards, and the press - for understanding on how sexual harassment is being defined and what rules apply. That can be explicit national legislation on sexual harassment, reflecting perhaps the European Commissions Code of Practice on sexual harassment at the workplace, but also equal employment opportunities (discrimination) and human rights legislation, labour legislation, civil remedies such as torts and negligence, and even criminal law. Not only does she offer a valuable review of recent decisions in all regions, including determination of liability, remedies and sanctions, she also provides an impressive list of references for those wishing to pursue the question. This important study goes a long way towards clarifying this difficult, critical subject.
Updated by CL. Approved by KMK. Last update: 30 April, 1997.
