CRITICAL EVALUATION

Standards of Reasonableness in the Law, Case Law, Statutory Provisions and European Directives Relating To the Sexual Harassment of Women



Standards of Reasonableness in the Law, Case Law, Statutory Provisions and European Directives Relating To the Sexual Harassment of Women

“Where a woman's actions or understandings are at issue, the modified reasonable person standard would, as a matter of law, require the judge or juror to consider female norms and ideals in making a 'reasonableness' determination”.

In May 2002, the European Union Parliament passed legislation that for the first time provides a legal definition of sexual harassment applicable throughout the European Union (EU). This latest legislation comes in the form of an amendment to the 1976 Council Directive 76/207/EEC (Directive), which attempted to effectuate equal treatment for men and women in the workplace. Prior to the passage of the May amendment (Amendment), sexual harassment was not considered a violation of equal treatment; however, the latest amendment specifically classifies sexual harassment as a form of discrimination in violation of equal protection. In addition, the new directive establishes guidelines for sanctions, legal action, and potentially unlimited compensation for sexual harassment victims. Pursuant to the directive, member states must establish agencies to promote equality and enforce anti-discrimination laws. The Amendment also requires member states to encourage employers and those responsible for vocational training to institute preventative measures to protect against sexual harassment in the workplace. The Amendment requires that states meet these objectives by 2005. Although the Amendment is not limited to addressing abuse against women, focus has been placed on its effects on sexual harassment against women.

The landmark decision of the Court of Session in Porcelli v. Strathclyde Regional Council (1985) IRLR 314 recognized the term sexual harassment in the workplace as a type of sexual discrimination prohibited under the Sex Discrimination Act 1986. Although not specifically mentioned in the Act, the Court of Session declared that sexual harassment may be a form of direct sex discrimination. Since then, sexual harassment has become a fertile area of litigation in employment tribunals and the Employment Appeals Tribunal. One feature of the general growth in litigation has been a significant increase in claims brought by men (Willey, 2003; Lane, 2002), a trend found also in the US context (EEOC, 2004). Sexual harassment has come to be recognized as a widespread and costly phenomenon in organizational life. By some accounts, it touches the lives of 40 per cent to 50 per cent of working women (European Commission, 1999; Fitzgerald et al., 1995) and is associated with significant costs to individuals and to organizations (Welsh, 1999). The European Union has recognized the need for further research to be carried out in this domain (EU, 2004).

The legal framework

Sexual harassment is a form of direct sex discrimination according to the Court of Session in Porcelli v. Strathclyde Regional Council (1985) IRLR 134 and includes unwelcome acts involving physical contact of a sexual nature and conduct falling short of such physical acts. Section 41(1) of the SDA states that an ...