In last week’s article I reproduced the definition of sexual harassment in the draft legislation on sexual harassment presently under consideration by the Ministry of Labour.
That definition was so expansive that it took up half of last week’s article.
It seems that it was the intention of the framers of the legislation that all conceivable types of behaviour that can amount to harassment should be enumerated in the definition.
However, it is submitted that the many different ways in which sexual harassment manifests itself, cannot be captured in any single definition and what may be better is to have a definition that is simpler but one which nevertheless is capable of embracing the kind of conduct that is intended to constitute sexual harassment.
One such definition that is worth consideration is that found in the Sexual Discrimination Act of Australia where the following definition was adopted since January 13, 1993 . . . “a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed, or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be ‘offended, humiliated or intimidated’ ”.
Incidentally the definition of sexual harassment in the CARICOM model legislation is similar to the above definition except that it requires the persons harassed to either reasonably believe that a rejection of the conduct would cause them to suffer disadvantage in connection with their employment, or that they actually suffer disadvantage as a result of the rejection of conduct.
Reference to the Sex Discrimination Act reminds me that sexual harassment is essentially a form of sexual discrimination.
Indeed in the United States, sexual harassment cases are brought under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment because of race, colour, religion, sex or natural origin. The Act applies to private sector employers with 15 or more employees, employment agencies and labour organizations. The Act prohibits discrimination in hiring, discharge and general conditions of employment.
One example of a case in which the courts found that a Title VII claim existed was the case of Henson v City of Dundee (1982) a decision of the United States Court of Appeals 11th circuit where a female police dispatcher, Henson, worked for the City of Dundee for two years during which time the police chief subjected her to numerous harangues of demeaning sexual inquiries and vulgarities.
Additionally, the police chief inferred that he could arrange for Henson to attend a police academy if she were to have a sexual relationship with him.
He had also requested her to have sex with him on several other occasions.
The court held that in order to prove a claim for sexual harassment under Title VII the plaintiff must allege and prove the following elements.
(1) The employee belongs to a protected group. As in other cases of sexual discrimination, this requires a simple stipulation that the employee is a man or a woman.
(2) The employee was subject to unwelcome sexual harassment (i.e “sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature”).
In order to constitute harassment, this conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.
(3) The harassment was based upon sex.
In proving a claim the plaintiff must show that but for the fact of her sex, she would not have been the object of harassment.
(4) The harassment complained of affected a “term condition or privilege” of employment. For sexual harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.
(5) Where the plaintiff seeks to hold the employer responsible for hostile work environment created by the plaintiff’s supervisor or co-worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
Cecil McCarthy is a Queen’s Counsel.