Sexual Harassment in the Workplace
Sexual harassment refers to the coercion or bullying that has an element of sexual nature or a promise of rewards in return for sexual favors. The act may include inappropriate remarks or even physical harassment that has a sexual connotation (Dromm 2012). However, laws do not prohibit the interactions of people in the workplace. Therefore, not all forms of contact may qualify as sexual harassment. According to Equal Rights Advocates (2013), a connection becomes sexual harassment only if it is unwelcome. Many countries illegalize sexual harassment through different laws and definitions. Thus, the vice is undesirable across the world. For instance, in the United States, the Equal Employment Opportunities Commission prohibits sexual harassment, while in the European Union, the block adopted a directive in 2002 encouraging member states to address the problem (Zippel). Verbal sexual harassment entails lewd comments, spreading information about one’s sex life, requesting sexual favors or dates, and threatening someone. The physical sexual offense involves touching, blocking one’s movement, hugging, and patting among others, while the visual form entails a display of erotic pictures or writings. The non-verbal types includes unwelcome gestures, facial expressions, and following someone around (Equal Rights Advocates 2013). This essay seeks to examine the issue of workplace harassment regarding the status of the regulations, as well as the strengths and weaknesses of the existing laws around the world.
Is Sexual Harassment Successfully Regulated in the Workplace? Why?
In countries across the world, there are various laws. Others also exist at regional levels to curb the problem of sexual harassment in the workplace. These laws depict the willingness of people at a national, regional, and global scale to fight crime. Even though there are laws that regulate the offense of sexual harassment, there is not much to celebrate, because the rules have not successfully eliminated the problem of sexual harassment. There are examples across the world that prove that the laws have not had a substantial impact on the workplace, regarding the problem.
According to Hersch (2015), studies conducted in eleven countries of Northern Europe revealed that 30-50% of females and 10% of males face workplace sexual harassment. The author further adds that in the United States of America 44% and 19% of women and men respectively suffer from the problem. Hersch (2015) further adds that a national study on Austrian women revealed that 81% were victims of the crime. In Hong Kong, similar studies depict that 255 of respondents confessed having experienced sexual harassment in the workplace. 1/3 of them were men, 6.6% of which reported the matter while the rest had a fear of embarrassment, while 20% of their female counterparts made the cases public (Sexual harassment at work n. d.). The International Labor Office Fact Sheet further states that 55.4% of women aged between 14 and 19 encountered the same problem. Additionally, the Fact Sheet says that their supervisors and co-workers reported that one out of three ladies experienced sexual intimidation in their career, while 55.6 % of women opted to resign. In the larger European Union, 50% of women also reported having encountered sexual harassment (Sexual harassment at work n. d.). The figures, therefore, prove that the problem of sexual harassment is evident in the workplace despite the presence of regulations.
In Australia, the Equal Opportunities Commission reported that 18% of the respondents aged between 18 and 64 complained about workplace sexual harassment, and 62% of the victims faced physical assault. The report projected that the trend shows that the incidences will continue increasing (Sexual harassment at work). In Germany, Denmark, the Netherlands, and the United Kingdom, the statistics show an average rate of 65% prevalence of verbal sexual harassment (Cela 2015). The offense was in the form of pressure for sex, sexual advances, flirting, suggestive comments, sexual jokes, etc. The study also focused on the non-verbal forms of sexual harassment, such as the display of erotic pictures, suggestive gestures, and whistling. In Luxemburg, Austria, Germany, Sweden, and the United Kingdom, the rate of incidences was 50-85% (Cela, 2015). The research also covered the physical form of harassment that included unwanted touches, pinching/patting, assault, brushing of bodies, and coercion. The rate for this type of harassment lays between 60% and 90% in the majority of European countries (Cela, 2015). The research further focused on the Quid pro quo sexual harassment, whereby workers faced demands from their supervisors to give in to sexual advances to maintain employment benefits, such as promotion or wage increase. The rate of crime in the European Union stood at 1-11% (Cela, 2015). With such large figures depicting cases of sexual harassment, the laws regarding the issue appear not to be very efficient.
Evaluation of the European Union Directive on Sexual Harassment 2002
Weaknesses of the Law
The European Union Directive on Sexual Harassment 2002 handles the issue of sexual harassment in a total of 25 countries in Europe (Zippel). However, the directive does not specify the form of harassment that counts. It does not explicitly define who can be considered a perpetrator or the context in which the crime takes place. Thus, it leaves loopholes for people to maneuver through the reported cases of harassment. Even though the law prohibits harassment by colleagues and supervisors, bar and restaurant waiters and other employees in the service delivery, such as nurses, continue to experience harassment from customers and clients. Additionally, the law does not consider the fact that harassment by colleagues does not only happen in the workplace, but also in other settings related to the workplace (Zippel). For instance, a worker may face harassment by a peer or a supervisor in a corporate, private party or during a business trip. The failure to cover employees in the service delivery, as well as other staff in work-related settings, weakens the laws by making people vulnerable to harassment.
The rules also fail to extend the coverage beyond the workplace. For instance, the directive does not outlaw harassment between teachers and students in schools or patients and doctors in hospitals (Zippel). Moreover, the law also overlooks the situations, such as the provision of services like pensions and loans (Zippel). By focusing predominantly on the workplace, the law leaves loopholes for the vice to develop outside of workstations. This promotes a spillover, because employees, clients, or even employers import the habit into their workplaces.
The European Union directive did not harmonize business requirements in the prevention of sexual harassment in the workplace, but left the matter to the discretion of member states instead. The directive only applies to the member states when cases of harassment have already happened, and it is usually an undesirable situation as employees may not have the ability to protect their jobs when suing the employer. In this regard, the law fails to prevent the occurrence of such cases and empower the victims, while launching suits or even compelling the companies to take complaints seriously (Zippel). To prove its effectiveness and efficacy, the law must force the employers to take preventive measures, such as training employees on modest workplace culture and adopting stringent policies to avert the problem of sexual harassment.
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Regarding the implementation and enforcement of the 2002 enforcement directive, the member countries never agreed on a common strategy (Zippel). The task of implementation was left to the discretion of the member states, and some of them appear to be less concerned about the issue. Thus, they have left the matter in the hands of the unions and the employers to take the necessary precautions. Even though the directive calls for collaboration between governments and social partners, such as the unions and employers, the member states do not contribute significantly to the eradication of the problem. Many states leave the ball in the hands of the unions and employers to voluntarily adopt steps and measures to curb the vice (Zippel). The lack of a common enforcement strategy and the standard have left the plight of workers unattended. For instance, a study conducted in the whole of the European Union depicted that only a small fraction of collective bargaining agreements captures sexual harassment. Only 24% of unions and 15% of employers were parties to such arrangements that cover sexual harassment (Zippel). Therefore, the figures depict that the law does not protect all workers from harassment.
Concerning the enforcement agencies, the European Union Directive 2002 on Sexual Harassment left the matter in the hands of individual national governments. However, the national governments of individual member states do not treat the issue of sexual harassment with the necessary gravitas. Thus, some of them may disregard the plight of workers. The failure to harmonize the standards for the establishment of agencies to implement the law, makes it hard to apply the law uniformly in the European Union. Hence, the workers are left vulnerable. For instance, in some countries, the fate of workers lies at the mercy of feminist organizations that may have inadequate power and resources to fight for the rights of women. Regarding the above issue, it is obvious that the law does not adequately protect the workers.
The other weakness of the law is that its implementation occurred at a time when the union was implementing regulations on mobbing, bullying, and moral harassment (Zippel). The problem in this situation is that the significance of the sexual harassment law was diluted by the general law that covers the above issues. The Union, therefore, needs to strengthen the law, so that it can capture the sexual nature of the mobbing, bullying, and moral harassment, as they do not appear in the general rules dealing with these issues.
Strengths of the Law
On a positive note, the European Union Directive on Sexual Harassment encourages member countries to incorporate the role of interested third parties in the fight against the crime (Numhauser-Henning & Laulom 2012). For instance, the law promotes the participation of associations and organizations in taking legal action in support or on behalf of the victims (Zippel). However, the strengthening of the unions lies in the hands of individual member states. The associations, therefore, empower the victims, increasing the rationality of the law. Regarding the above issue, the law is, therefore, beneficial even though the involvement and support of organizations need harmonization and uniform standards in the entire union.
Moreover, the European Union Directive on Sexual Harassment 2002 is ideal as it prohibits gender and sexual harassment at a cross-boundary level. The law is bidding as it applies to 25 member states of the Union (Zippel). It convinced the reluctant countries, such as Portugal and Greece, that had previously disregarded the issue of sexual harassment. However, the law allows the states to define sexual harassment according to their national cultures. The law tries to respect the public wishes of a given population and only sets minimum standards of anti-sexual harassment measures. The law is, therefore, strong as it binds people of different cultures from 25 countries to unite against sexual harassment in the workplace.
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Evaluation of Anti-Sexual Harassment Laws in the United States
Weaknesses of the Law
In the United States, there is no universal agreement between courts regarding what is the employers’ duty or reasonable care towards the protection of workers from sexual harassment. Different courts use discretion to determine whether the company’s policies regarding anti-harassment are active. The law is prone to misunderstandings, as well as maneuvers. These may enable the businesses to quickly escape their liability by twisting the idea of reasonable protection (Practicing Law Institute 2013). The country, therefore, needs to revise the law to make it clear what constitutes reasonable protection, standardizing the employers’ requirements in the protection of employees from harassment.
The United States law does not put significant weight on sexual harassment, as the Title VII of the Civil Rights Act and the Equal Employment Opportunities Commission law cover discrimination against workers based on sex and does not significantly capture the issue of sexual harassment. The juries deciding cases of sexual harassment rely on verdicts on earlier cases handled by the Federal Supreme Court (Practicing Law Institute 2013). The situations give loopholes for misinterpretation of the law as well as the use of discretion in deciding the case at hand. The country needs to isolate the issue of sexual harassment from all other problems in the workplace and come up with a law that directly handles the issue of sex discrimination comprehensively.
Strengths of the Law
The federal law obligates employers to investigate cases of sexual harassments immediately after they receive complaints and to correct the behavior appropriately (Practicing Law Institute 2013). The law brings in the employer responsibility and liability regarding acceptable practices in the workplace. Moreover, the Equal Employment Opportunities Commission mandates the companies to establish, publicize, implement, and enforce policies dealing with sexual harassment as well as the procedure for lodging complaints. The employer further has to provide a written anti-sex harassment policy to every worker on a periodic basis, and the system must assure the employees of confidentiality of complaints, as well as provide assurance that there won’t be any form of retaliation in case a victim reports the matter. The law is, therefore, rational as it compels the employers to lead in the battle against workplace sexual harassment.
Evaluation of the Indian Sexual Harassment Act
Weaknesses of the Law
The Indian law on sexual harassment is discriminatory as it does not cover all workers. For instance, it does not touch on sexual harassment of employees in the agricultural sector, as well as the male-dominated armed forces (Gujarat National Law University 2014). Therefore, the deficiency exposes women in the army as well as the agricultural laborers to the threat of sexual harassment. If a law cannot safeguard all the people in the country, then it does not qualify to be a national law. Thus, one may not be wrong to say that India has no national law on sexual harassment. Such a loophole exposes a significant fraction of workers to sexual harassment, so the country needs to undertake amendments to nationalize the law.
The law on sexual harassment has no gender neutrality. Thus, it is biased against men. The law only covers sexual harassment against women and does not address the plight of all people (Gujarat National Law University 2014). In India, sexual harassment is gender neutral as women also commit the crime. Gujarat National Law University (2014) states that the perpetrators of the offense in some cities are almost equal on both sides. Regarding the above statement, the law appears ineffective as it does not recognize that the world is changing and that men are also becoming vulnerable to social problems. The country needs to amend the law and include males in the definition of victims of sexual harassment as a way of securing all citizens from the vice.
The law is not rational because it does not specify the fines applicable to the various types of sexual harassment (Gujarat National Law University 2014). The determination of the fine charged ещ an employer for such offenses is left to a committee that makes decisions basув on the income and the financial statements of the business. The problem with this strategy of determining the fine is that it allows the use of discretion in setting the amount an individual or a corporation should pay as penalty for the crime. Additionally, the loophole makes it possible for the defendant to bribe the committee so that the fine charged is not high. The determination of penalties based on the income and statements is also irrational as it creates inequalities in the compensations awarded to the victims of sexual violence. This idea means that two victims of the same form of sexual harassment from different companies do not receive the same compensation. Such inequalities are undesirable. The country, therefore, needs to amend the law to ensure that there is a fixed or a minimum amount of money fined on an individual or a company for crimes relating to sex in the workplace.
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Strengths of the Law
The law recognizes the fact the women are more vulnerable compared to men. Thus, it offers to prevent the sexual harassment of women in the workplace. Moreover, the law carefully defines the workplace as any place arising out of employment and covers workstations and work-related settings (Gujarat National Law University 2014). A comprehensive definition of the workplace compels the employer to enhance the safety of the female employees not only in the office, but also in the other places associated with work. Concerning the above information, the law is rational due to the acknowledgment that sexual harassment does not only occur at work, but also in other areas and situations associated with work.
In conclusion, sexual harassment refers to the acts of indecency to an individual that has elements of sex. The vice is not properly regulated in the workplace as the laws have loopholes that promote the problem, as proven by data from various countries. In the European Union, the directive has several loopholes because it lacks a precise definition of the act and does not cover sexual offenses beyond the workplace. The law also fails to harmonize the employer requirements, implementation of the law, as well as the establishment of relevant agencies. Lastly, the law does not emphasize the weight of sexual harassment as it dissolves in the general rules of bullying, mobbing, and moral harassment. However, the European Union directive has some rationality as it tries to curb the crime at a cross-boundary level through mobilization of several countries. The other strength is that it encourages the role of third parties in handling sexual harassment cases. In the United States, the law is not valid because there is no precise definition of the employers’ reasonable care and also due to the reason that there is no specific law on sexual harassment, so juries have to rely on previous Supreme Court verdicts. Therefore, the law is rational as it obliges employers to intervene in sexual harassment cases and provides workers with a written workplace policy on the issue. In India, the law is not valid because it neglects employers in some sectors, as well as all men. In addition, it does not specify the applicable fines. However, on a positive note, the law recognizes the employers’ responsibility to protect workers from the issue. Regarding the above information, the weaknesses of all the laws mentioned above exceed their strengths, and this provides loopholes for the crime to thrive. Therefore, all countries need to strengthen their rules to curb the problem.
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