Sexual Harassment Law

This essay will first summarise the relevant law first and then analyse its effectiveness. For this second aim, the structure will be borrowed from Fuller's 'The Morality of Law' (1969). Before we can evaluate, we must first know what the law of sexual harassment in the workplace is. In broader context, discrimination is generally unlawful and sexual harassment is one such type of unlawful behaviour. The Sex Discrimination Act 1975 as amended by the Employment Equality (Sex Discrimination) Regulations 2005 and The Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SDA) sets out two types of sexual harassment in the workplace at s.4A(1).

Both provide that sexual harassment in the workplace is 'unwanted conduct [… ] that has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environmenti??. The first offence is defined in terms of behaviour which is discriminatory in the sense that the offender has treated the victim differently from the way they would treat a person of the opposite sex (of the victim).

The second definition provides that such 'unwanted conduct' where 'of a sexual nature' is unlawful in itself (thus thwarting the defence of the offender's being bisexual). The Advisory Conciliation and Arbitration Service's publication 'Bullying and Harassment at Work: Guidance for Employees' and the Equal Opportunity Commision (EOC) and European Commission codes of practice give more detailed guidance as to what constitutes harassment (and are seriously relied on by those applying the law, which is at tribunal).

The law also stipulates (at s. 41 SDA) that the employer is vicariously liable (i. e. will be liable for such unlawful acts of his employees even where he does not know that they are occurring) unless he has a 'reasonable steps' defence (as provided for at s. 41(3) SDA. This requires an employer to adopt practices and procedures which are reasonably practical to prevent such unlawful behaviour. This broadly means adopting the codes mentioned above as a written policy and communicating same to all employees.

'The workplace' is broadly defined (for example following Lincolnshire Constabulary v Stubbs [1999] it included a drink after work). Since inclusion of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 into the SDA, it is notable that proving sexual harassment has a reduced burden, 'to establish sufficient facts from which it can be presumed that there has been discrimination'. The burden is then upon the employer to demonstrate to the contrary. Finally, unfavourable treatment as a result of making a complaint in good faith (victimisation) is prohibited at s.4(1).

On then to evaluation. Turning to Fuller's guidance, is there a failure to communicate the law? The EOC found that 72% of employers had a sexual harassment policy (and since the larger ones were more compliant a much higher percentage of employees are therefore afforded theoretical protection). Less clear (but more important) is how many employees 'know their rights'? Employers may have paid lawyers to have their 'reasonable steps' in place on paper but still somewhere between a third and a half of their workforce will experience sexual harassment.

Given the Industrial Society's 1993 conclusion that 54% of women had been sexually harassed at work (or the TUC's 27% estimate) the law clearly does fail since such unlawful behaviour remains endemic. As to Fuller's second and third points (good law is clear and understandable and different rules are not contradictory),

Fredman ('Discrimination Law' (2002)) argues compellingly as his third reason for the failure of sexual harassment law that this 'results from …legal provisions which are extremely complex, not least because of the interaction of anti-discrimination statues with EU law and … the Human Rights Act. ' Fuller's last point (that bad law can be identified where there is 'a failure of congruence between the rules as announced and their actual administration') condemns the current law given that 75% of sex discrimination cases did not reach tribunal in 1998-99 and only 7% of all sex discrimination cases were successfully brought.

Not surprising given that awards (2-5,000) are often being less than the legal fees which must be found regardless of outcome. Clearly then there is a 'failure of congruence' – the tribunal mechanism is not usually used. It is difficult to draw conclusions. This essay is confined to consideration of the course material provided. The law changed in 2001 (when the new EU code of practice and burden of proof amendment commenced) and the statistics given (particularly readings 40 and 42) all relate to earlier years. The EOC 'analysis' is questionable.

Hand picked cases over four years cannot easily be viewed as sufficiently reliable data and they can be expected to have had self-aggrandising reasons in reaching their conclusions (no such organisation ever asked for a reduction in its role because its importance has reduced over time). Nevertheless their headline 'outcome' that 'in over 90% of cases the person bringing the complaint had lost their job or resigned as a direct result' would clearly point to a serious failure of the law.