Abuse of Power- Sexual Harassment in the Workplace
Sexual harassment is defined as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”- s.14A(7) Employment Equality Act 1998-2015.
There are several forms of behavior which constitute sexual harassment, which include, but are not limited, to the following examples;
Physical conduct of a sexual nature: Unwanted physical contact such as touching, patting, brushing against another employee’s body, pinching, assaulting or coercing sexual intercourse;
Verbal conduct of a sexual nature: Unwelcome sexual advances, continued suggestions of social activity outside of the workplace after it has been made clear that such suggestions are unwelcome, propositions or pressure for sexual activity, flirtation of an offensive nature, suggestive remarks, comments or innuendos.
Non- verbal conduct of a sexual nature: The display and/or sharing of pornographic or sexually suggestive pictures, objects, written materials, text messages or emails. Non-verbal conduct extends to whistling, leering or making unwanted sexually suggestive gestures.
Gender-based conduct- Such conduct would include behavior that denigrates, ridicules or intimidates an employee because of his or her sex, such as derogatory abuse or insults that are gender related.
The Employment Equality Acts stipulate that in order for behavior to be considered harassment of a sexual nature, it must be unwelcome. The test of whether the behavior is unwelcome is a subjective one; i.e. it is up to the employee themselves to decide (a) whether the behavior is unwelcome, irrespective of what view others may hold and (b) from whom such behavior is unwelcome, again irrespective of the attitudes of others to the matter. Furthermore, the fact that behavior may have previously been welcome, does not prevent one from deciding that such behavior is no longer welcome or mutual.
To constitute sexual harassment under the Act, the behavior must have the purpose and effect of violating one’s dignity and creating a degrading, humiliating, offensive or intimidating environment for that individual. The intention of the perpetrator is not taken into consideration in the determination of these matters under the Act; it is the effect that the behavior has on the employee that regard is given to.
Protection under the Employment Equality Acts extends to harassment at the hands of the employer, fellow employees, clients or customers. This imposes a duty on employers to protect their staff from sexual harassment in the work place, regardless of the role of person within the workplace/business dynamic. In addition to a responsibility to protect the employee in the workplace, the scope of the legislation extends to circumstances beyond and/or outside of the workplace for example, conferences, training programmes and work –related social events.
Most importantly, the legislation protects those who have made complaints about sexual harassment in the workplace, and as a result of reporting the behavior, have experienced a difference in treatment in relation to their position at work, access to training, promotion, salary, bonus etc. This resonates with those who have been made feel that by reporting any incident of unwanted behavior, their position/reputation in the workplace will suffer as a result. This is a recognized threat within incidents of sexual harassment and, in the circumstances, provision has been made under the Acts to protect against such threats having the desired effect of preventing the reporting of such unwelcome behavior.
Under s. 98 of the Employment Equality Act, it is an office to dismiss an employee on foot of them making a complaint of sexual harassment in good faith.
Cases of sexual harassment in the workplace are determined by Equality Tribunal, the Circuit Court and the Labour Court. Complaints under the Acts must be made within 6 months of the alleged sexual harassment, or within 6 months of the most recent incident of sexual harassment. This time may be extended to 12 months where reasonable cause to extend is shown.
The maximum that can be awarded by the Equality Tribunal is 104 weeks pay, or €40,000 whichever is greater. Although there is a cap on awards made by the Tribunal, this limitation does not extend to awards made within the jurisdiction of the Circuit Court (€15,000-€75,000).