International Journal of Discrimination and the Law

This article explores the possible reasons for the absence of a public discourse about sexual harassment in Australia, which can be contrasted with a relatively well-developed legal discourse. It also briefly compares the debate about sexual harassment in the United States and Australia that followed in the wake of controversial and very public sexual harassment cases in each country. It argues that the debate in the wake of the Clarence Hill-Anita Thomas hearings in the United States was much more productive than the debate in Australia after the publication of Helen Garner’s book, The First Stone. The discussion in Australia focused on whether the young women in the case had ‘over-reacted’ and whether there were generational differences in women’s reactions to sexual harassment. The more interesting (and I would argue, far more important) questions of what is sexual harassment is and what are its effects were ignored. This article goes on to explore one aspect of what sexual harassment is and does by examining what women actually do in response to sexual harassment through an analysis of some of the stories of targets of harassment as they appear in the law reports. In this way it tries to make some of the legal discourse about sexual harassment a part of the public discourse about the phenomenon.

Sexual harassment litigation has increased significantly within the United States. It is a cause of action that was created by the judiciary to enable an employee to work in an atmosphere free from a sexually hostile environment. Some parameters of U.S. sexual harassment law are still unclear, but the law now applies to men and women, and the burden of proof has gradually been eased.

Under judge-made law, an employer will always be liable when harassment culminates in a tangible employment detriment. The employer is also automatically liable when a supervisor creates a hostile environment, unless the employer can prove that it has taken reasonable steps to prevent or correct harassment and that the employee unreasonably failed to use the employer's anti-harassment procedures. Employers are also liable for harassment perpetrated by supervisors, co-workers and non-employees if the employer is negligent in failing to prevent or correct harassment. Employers are thus well advised to formulate and enforce an anti-harassment workplace policy that allows a complainant to have a thorough, impartial and prompt investigation of any allegation of harassment.

Complainants can elect to use federal-law and state-law remedies for sexual harassment/discrimination. The state law, unlike the federal, may allow unlimited tort-like damages. A complainant may also allege common law causes of action such as infliction of emotional distress.

This paper examines the law of sexual harassment in Australia and concludes that, while there is extensive legislative coverage at Commonwealth, State and Territory levels, this coverage is uneven. The differences and resulting outcomes between local jurisdictions are considered. The differences between Australian laws and overseas jurisdictions are also considered, particularly with respect to procedure in sexual harassment cases and remedies in a jurisdiction where punitive damages are not allowed. The paper considers the positive and negative features of the Australian law and argues that greater education of the legal profession is needed to allow the adequate delivery of justice to people who have been sexually harassed.

This article critiques the sexual harassment provisions of Hong Kong's Sex Discrimination Ordinance , as well as the enforcement model. Although the judiciary has had some opportunity to interpret the Ordinance, most complaints never reach the courts because the Equal Opportunities Commission has a statutory duty to attempt to conciliate a complaint before granting legal assistance. When the Ordinance was enacted it was widely assumed that Chinese women would prefer confidential conciliation to a public hearing. However, interviews with past complainants and representatives of women's organizations reveal that many complainants find conciliation conferences to be extremely stressful. They also feel demeaned and disempowered by what is effectively an obligation to negotiate with the respondent. The author concludes that the current model exacerbates the power imbalance between complainants and respondents and limits the systemic impact of the law. She argues that an informal and inexpensive Equal Opportunities Tribunal should be created. This would allow those complainants who are willing to try their complaints to proceed directly to a hearing, without any obligation to first participate in conciliation.

Although it is a well-known fact that sexual harassment is a common practice in Greek workplaces carried out both by employers and fellow employees, the State has not adopted any relevant civil and/or criminal legislative measures specifically to deal with it. However, there exists a general legal framework consisting of provisions in the Constitution, in the Civil Code, in the Criminal Code, and in various collective employment contracts, as well as general principles of Labour Law. Arguably, this framework does not afford to victims of sexual harassment a satisfactory regime for seeking redress. The present article analyses this legal framework and, on the basis of the applicable case law, shows how it has been applied in practice and how, on occasion, the courts have expanded its scope to overcome legislative shortcomings.

The first laws concerning sexual harassment were passed by the French Parliament in 1992 following the recommendations of the Commission of 27 November 1991 on the protection of the dignity of men and women in the workplace. The law also obliges employers to take all necessary measures to prevent acts of harassment. Sexual harassment is also a crime in France.

This article describes the operation and application of those laws, noting the narrow definition of sexual harassment when compared to European Community law. Relatively few sexual harassment complaints have been filed in France, but this may equally be the result of confidential conciliation of complaints as of the restrictive application of the law.

This paper analyses the law of sexual harassment in Canada, including the notion of the ‘reasonable woman’, indicating a broad legislative coverage. However, despite the recognition of a clear human rights base and the quasi-constitutional character bestowed on the law by the courts, awards remain low and a compelling and consistent body of supportive jurisprudence is yet to emerge.

Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication.

Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one.

The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.

This paper explores some of the legal remedies open to a claimant who has been a victim of gender-based sexual harassment. It begins with an examination of the legal meaning of ‘sexual harassment’. The principal law currently used by claimants, namely statutory sex discrimination, is then reviewed in depth. Other possible legal claims under statutory, common and criminal law are looked at next. The prospective statutory tort of sexual harassment derived from the European Community' Equal Treatment Amendment Directive is outlined. Measures to reduce employer liability are also considered. Despite the number of ways, in both civil law and criminal law, through which redress for sexual harassment may be claimed, in the absence of specific statutory law on sexual harassment English courts are essentially embarking on an exercise of trying to fit round pegs into square holes.

This article discusses the development of sexual harassment law in a State where most men are steeped in male-supremacist values but remain unaware of their biases. This development has been almost entirely through case law based on the Indian Constitution interpreted in the light of India's international human rights obligations. However, the Indian Penal Code has also been significant in this development, on the one hand expanding the application of sexual harassment laws beyond the workplace to all public places, while on the other hand acting as a brake on the level of damages that might be awarded. While India now has the beginning of a legal mechanism which can redress sexual harassment, there still needs to be a radical transformation in the way women are treated before equality and dignity for all can be translated into a meaningful reality.

The 1998 Israeli sexual harassment law prohibits sexual harassment 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, referred to as ‘prejudicial treatment’.

Sexual harassment and prejudicial treatment are each both a crime and a tort under the Israeli sexual harassment law. The law makes harassers, as well as persons involved in prejudicial treatment, potentially personally liable for either the crime or tort of sexual harassment, or both. The law awards punitive damages to victims1 of sexual harassment or prejudicial treatment — whether or not actual damage of any sort is claimed or proved. Sexual harassment and prejudicial treatment are prohibited in all social settings and contexts.

In the workplace, an employer is vicariously liable for the civil consequences of sexual harassment or prejudicial treatment perpetrated by anyone in his or her employ. The employer's civil liability is in addition to the harasser's individual civil and criminal liability. In order to avoid liability, an employer must take all the measures prescribed by the sexual harassment law (including, inter alia , establishment of policy and serious, prompt and efficient treatment of a victim's complaint).

This article considers the analyses in this volume, as well as applicable international law, to show how the law shapes, as well as being shaped by, social perceptions of sexual harassment. International and regional instruments are relatively weak in the regulation of sexual harassment, so that measures taken at domestic level are of primary importance. Questions such as the motivation for passing domestic sexual harassment legislation, the legal definitions used, the extra-definitional problems, procedural variations and the effectiveness of these laws, are considered. It is argued that an extra-legal approach is needed to address properly, and to redress adequately, sexual harassment. Adequate labelling as a breach of human rights, as well as juridical naming, of sexual harassment may facilitate the development of effective laws.