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"Hostile environment" harassment may acquire characteristics of "quid pro quo" harassment if the offending supervisor abuses his authority over employment decisions to force the victim to endure or participate in the sexual conduct. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Under these circumstances it would be appropriate to conclude that both harassment and retaliation in violation of section 704(a) of Title VII have occurred."
Retaliation
Retaliation has occurred when an employee suffers a negative action after he or she has made a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities. Negative actions can include being fired, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment--any adverse employment decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting a charge of discrimination. (See Burlington Northern & Santa Fe Railway Co. v. White) Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Also, retaliation is illegal even if the original charge of sexual harassment was not proven.
Other jurisdictions
Many jurisdictions outside the United States have adopted their own definitions of sexual harassment, intended to cover essentially the same forms of undesirable conduct. However, if a country has officially outlawed sexual harassment, most define the behavior similarly to that of the U.S., some examples below:
- Czech Republic: Undesirable behavior of a sexual nature at the workplace if such conduct is unwelcome, unsuitable or insulting, or if it can be justifiably perceived by the party concerned as a condition for decisions affecting the exercise of rights and obligations ensuring from labor relations.
- Denmark: Sexual harassment is defined as, when any verbal, non-verbal or physical action is used to change a victim's sexual status against the will of the victim and resulting in the victim feeling inferior or hurting the victim's dignity. Man and woman are looked upon as equal, and any action trying to change the balance in status with the differences in sex as a tool, is also sexual harassment. In the workplace, jokes, remarks, etc., are only deemed discriminatory if the employer has stated so in their written policy. Women are viewed as being responsible for confronting harassment themselves, such as by slapping the harasser in the face. Law number 1385 of December 21, 2005 regulates this area.
- France: Article 222-33 of the French Criminal Code describes sexual harassment as, "The fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him..." This means the harasser can only be someone with authority on the harassed (basically, there can't be sexual harassment between coworkers of the same rank). However, moral harassment occurs when an employee is subjected to repeated acts (one is not enough) the aim or effect of which may result in a degradation (deterioration) of his conditions of employment that might undermine his rights and his dignity, affect his physical or mental health or jeopardize his professional future. Sexual as well as the moral harassment is recognized by the law.
- India: Sexual harassment in India (and Pakistan)is termed "Eve teasing" and is described as: unwelcome sexual gesture or behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances; showing pornography; a demand or request for sexual favours; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. The critical factor is the unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator.
- Israel: The 1998 Israeli Sexual Harassment Law interprets sexual harassment broadly, and prohibits the behavior as a discriminatory practice, a restriction of liberty, an offence to human dignity, a violation of every person's right to elementary respect, and an infringement of the right to privacy. Additionally, the law prohibits intimidation or retaliation that accommodates sexual harassment. Intimidation or retaliation thus related to sexual harassment are defined by the law as "prejudicial treatment". (Kamir, 2005)
- Pakistan: Pakistan has adopted a Code of Conduct for Gender Justice in the Workplace that will deal with cases of sexual harassment. The Alliance Against Sexual Harassment (AASH) announced they would be working with the committee to establish guidelines for the proceedings. AASH defines sexual harassment much the same as it is defined in the U.S. and other cultures.
- Philippines: The Anti-Sexual Harassment Act of 1995 was enacted "primarily to protect and respect the dignity of workers, employees, and applicants for employment as well as students in educational institutions or training centers. This law, consisting of ten (10) sections, provides for a clear definition of work, education or training-related sexual harassment and specifies the acts constituting sexual harassment. It likewise provides for the duties and liabilities of the employer in cases of sexual harassment, and sets penalties for violations of its provisions. It is to be noted that a victim of sexual harassment is not barred from filing a separate and independent action for damages and other relief aside from filing the charge for sexual harassment."
- Poland: There is no special provision in the employment law that provides for moral or sexual harassment; however it is commonly accepted by the jurisprudence, that sexual harassment occurs when the employee is subjected to acts of another person in order to obtain favours of a sexual nature. Moral harassment occurs when en employee is subjected to acts which may result in a deterioration of his conditions of employment or undermine his rights and dignity as well as affect his physical or moral health. These definitions are not legal ones, but definitions accepted by the jurisprudence.
- Russia: In the Criminal Code, Russian Federation, (CC RF), there exists a law which prohibits utilization of an office position and material dependence for coercion of sexual interactions (Article 118, current CC RF). However, according to the Moscow Center for Gender Studies, in practice, the courts do not examine these issues.
- United Kingdom: The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986. It states that harassment occurs where there is unwanted conduct on the ground of a person's sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If an employer treats someone less favourably because they have rejected, or submitted to, either form of harassment described above, this is also harassment.
- Australia: The Sex Discrimination Act 1984 defines sexual harassment as " ... unwanted conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."
Debates
Though the phrase "sexual harassment" is generally acknowledged to include clearly damaging and morally deplorable behavior, its boundaries can be broad and controversial. Accordingly, misunderstandings can abound. Moreover, sexual harassment law has been highly criticized by experts, such as Alan Dershowitz and Eugene Volokh, for imposing on the right to free speech. Some feminist groups criticize sexual harassment policy as helping maintain archaic stereotypes of women as "delicate, asexual creatures" who require special protection. Camille Paglia, for example says that young girls can end up acting in such ways as to make sexual harassment easier, such that for example, by acting "nice" they can become a target. Paglia commented in an interview with Playboy, "Realize the degree to which your niceness may invoke people to say lewd and pornographic things to you--sometimes to violate your niceness. The more you blush, the more people want to do it."
Sexual harassment policy and legislation have been criticized as attempts to "regulate romance" which goes against human urges. Other critics assert that sexual harassment is a very serious problem, but current views focus too heavily on sexuality rather than on the type of conduct that undermines the ability of women or men to work together effectively. Viki Shultz, a law professor at Yale University comments, "Many of the most prevalent forms of harassment are designed to maintain work-particularly the more highly rewarded lines of work-as bastions of male competence and authority." Feminist Jane Gallop sees this evolution of the definition of sexual harassment as coming from a "split" between what she calls "power feminists" who are pro-sex (like herself) and what she calls "victim feminists," who are not. She argues that the split has helped lead to a perversion of the definition of sexual harassment, which used to be about sexism but has come to be about anything that's sexual. (Gallop, 1997)
There is also concern over abuses of sexual harassment policy, and employers and administrators using accusations as a way of expelling employees they want to eliminate for other reasons. (Westhues, 1998).
There is also discussion of whether some recent trends towards more revealing clothing and permissive habits have created a more sexualized general environment, in which some forms of communication are unfairly labeled harassment, but are simply a reaction to greater sexualization in everyday environments.
There are many debates about how organizations should deal with sexual harassment. Some observers feel strongly that organizations should be held to a zero tolerance standard of "Must report - must investigate - must punish."
Others write that those who feel harassed should in most circumstances have a choice of options. See "Workplace Justice, Zero Tolerance, and Zero Barriers," 2001, by Mary Rowe and Corinne Bendersky, in Negotiations and Change, From the Workplace to Society, Thomas Kochan and Richard Locke (editors), Cornell University Press, 2002; Mary Rowe in "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241-271; Mary Rowe, "People Who Feel Harassed Need a Complaint System with both Formal and Informal Options," in Negotiation Journal, April, 1990, Vol. 6, No. 2, pp. 161-172. Sexual harassment, by definition, is unwanted and not to be tolerated but there often are a number of effective ways for offended and injured people to deal with harassment.
References
- American Association of University Women. Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School. AAUW, 2002.
- American Association of University Women. Drawing the Line: Sexual Harassment on Campus. AAUW,2006.
- Bingham, Clara, Gansler, Laura Leedy. Class Action: The Landmark Case that Changed Sexual Harassment Law. New York, Anchor Books, 2002.
- Boland, Mary L. Sexual Harassment: Your Guide to Legal Action. Naperville, Illinois: Sphinx Publishing, 2002.
- Dziech, Billie Wright, Weiner, Linda. The Lecherous Professor: Sexual Harassment on Campus. Chicago Illinois: University of Illinois Press, 1990.
- Gallop, Jane. Feminist Accused of Sexual Harassment. Duke University Press, 1997.
- Harper, Colin. My Uncontrollable Urges. Bridge Publications, 1998.
- Harper, Colin. Why I can't take 'no' for an answer... Bridge Publications, 2001
- Kamir, Orit. "Israel's 1998 Sexual Harassment Law: Prohibiting Sexual Harassment, Sexual Stalking, and Degradation Based on Sexual Orientation in the Workplace and in all Social Settings." International Journal of Discrimination and Law, 2005, 7 , 315-336.
- Koss, Mary P. "Changed Lives: The Psychological Impact of Sexual Harassment." in Paludi, Michele A. ed. Ivory Power: Sexual Harassment On Campus. Albany, NY, State University of New York Press, 1987.
- Langelan, Martha. Back Off: How to Confront and Stop Sexual Harassment and Harassers. Fireside, 1993
- Patai, Daphne. Heterophobia: Sexual Harassment and the Future of Feminism. Lanham: Rowman and Littlefield, 1999.
- Rowe,Mary "People Who Feel Harassed Need a Complaint System with both Formal and Informal Options," in Negotiation Journal, April, 1990, Vol. 6, No. 2, pp. 161-172.
- Rowe,Mary, "Dealing with Harassment: A Systems Approach," in Sexual Harassment: Perspectives, Frontiers, and Response Strategies, Women & Work, Vol. 5, Margaret Stockdale, editor, Sage Publications, 1996, pp. 241-271.
- Rowe, Mary & Corinne Bendersky, "Workplace Justice, Zero Tolerance, and Zero Barriers," 2001, in Negotiations and Change, From the Workplace to Society, Thomas Kochan and Richard Locke (editors), Cornell University Press, 2002
- Watson, Helen. "Red herrings and mystifications: Conflicting perceptions of sexual harassment," in Brant, Clare, and Too, Yun Lee, eds., Rethinking Sexual Harassment. Boulder, Colorado, Pluto Press, 1994.
- Westhues, Kenneth. Eliminating Professors: A Guide to the Dismissal Process. Lewiston, NY: The Edwin Mellen Press, 1998.
For further reading
- Directions in Sexual Harassment Law. R. B. Siegel, co-editor. MacKinnon, Catherine. New Haven, Conn.: Yale Univ. Press, 2004.
- Ivory Power: Sexual Harassment On Campus. Paludi, Michele A. ed. Albany, NY, State University of New York Press, 1987.
- Sexual Harassment : A Practical Guide to the Law, Your Rights, and Your Options for Taking Action. O'Shea, Tracy, and LaLonde, Jane. St. Martin's Griffin, 1998.
- Sexual Harassment of Working Women : A Case of Sex Discrimination. MacKinnon, Catherine. Yale University Press, 1979
- Sexual Harassment on the Job: What It Is and How to Stop it. Petrocelli, William, and Repa, Barbara Kate. NOLO, 1998
- The Updated and Expanded 9to5 Guide to Combating Sexual Harassment : Candid Advice from 9to5, the National Association of Working Women. Bravo, Ellen, and Cassedy, Ellen. The 9to5 Fund, 1999.
See also: SIECUS annotated bibliography of books on sexual harassment and sexual violence
Sexual harassment in media and literature
- The Ballad of Little Jo: film based on the true story of a woman living in the frontier west who disguises herself as a man to protect herself from the sexual harassment and abuse of women all too common in that environment.
- Disclosure: a film starring Michael Douglas and Demi Moore in which a man is sexually harassed by his female superior, who tries to use the situation to destroy his career by claiming that he was the sexual harasser.
- Disgrace: a novel about a South African literature professor whose career is ruined after he has an affair with a student.
- Hostile Advances: The Kerry Ellison Story: television movie about Ellison v. Brady, the case that set the "reasonable woman" precedent in sexual harassment law.
- In the Company of Men: film about two male coworkers who, angry at women, plot to seduce and maliciously toy with the emotions of a deaf subordinate who works at the same company.
- Les Miserables: a novel by Victor Hugo, and later several film adaptations. During the early stages of the story, Fantine is fired from her job after refusing to have sex with her boss.
- The Magdalene Sisters: film based on the true stories of young women imprisoned for "bringing shame upon their families" by being raped, sexually abused, flirting, or simply being pretty, and subsequently subjected to sexual harassment and abuse by the nuns and priests in the Magdalene asylums in Ireland.
- Nine to Five: film comedy starring Jane Fonda, Lily Tomlin, and Dolly Parton, about three women who are subjected to constant bullying and sexual harassment by their boss.
- North Country: film depicting a fictionalized account of Jenson v. Eveleth Taconite Co., the first sexual harassment class action lawsuit in the U.S.
- Oleanna: an American play by David Mamet, later a film starring William H. Macy. A college professor is accused of sexual harassment by a student. The film deals with the moral controversy as it never becomes clear which character is correct.
- Pretty Persuasion: film starring Evan Rachel Wood and James Woods in which students turn the tables on a lecherous and bigoted teacher. A scathingly satirical film of sexual harassment and discrimination in schools, and attitudes towards females in media and society.
- War Zone: documentary about street harassment.
- Sexual Harassment Panda, an episode of South Park, parodies sexual harassment in schools and the lawsuits which result from lawyers and children using the vague definition of sexual harassment in order to win their lawsuits.
- Sexual Harassment In The Workplace, an instrumental minor-key blues by Frank Zappa, from the album Guitar
See also
- Catharine MacKinnon
- Hostile environment sexual harassment
- Micro-inequities
- Sexism
- Sexual abuse
- Sexual harassment in education
- Workplace bullying
- Disciplinary counseling
Notes
- ^ Employment Law in Each Country
- Denmark Law
- Sexual Harassment in the Workplace in France and in the United States Spring 1997
- Cite error: The named reference
india_rapewas invoked but never defined (see the help page). - AASHA - (Pakistan) Alliance Against Sexual Harassment
- Full text of the Philippine Anti Sexual Harassment Law
- Sexual Harassment in Russian Workplaces - Sexual Harassment Support Forum
- Strathclyde Regional Council v Porcelli
- Sexual Harassment: what the law says
- Freedom of Speech vs. Workplace Harassment Law
- Feminism and Free Speech
- Playboy interview, Camille Paglia May 1995
- Sexual Harassment: The employer's role in prevention
- Love, Lust, and the Law Sexual Harassment in the Academy
- 'Save the males': Ho culture lights fuses, but confuses, By KATHLEEN PARKER, NY Daily News, June 30th 2008. Based on "Save the Males" by Kathleen Parker, Copyright 2008, Random House, an imprint of Random House Publishing Group.
External links
- Directory of EEOC and state anti-discrimination agencies
- Database of important sexual harassment cases and litigation
- U.S. Dept. Of Education Sexual Harassment Resources
- Database of international articles focusing on the problem of sexual harassment
- Preventing Sexual Harassment in the Workplace - free online course
- Committee for Children: Bullying and sexual harassment in schools
- Popular lesson plan for teaching young people about sexual harassment
- SESAME - Stop Educator Sexual Abuse, Misconduct, and Exploitation
- Sexual Harassment Support - information, resources
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