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#MeToo has left a wide range of employers scrambling to respond to allegations of sexual harassment and a new Code of Practice from the Equalities and Human Rights Commission (EHRC) has been launched to set out how to prevent and address sexual harassment at work, but will it be enough to reach the legal defence of ‘reasonable steps to prevent it’?
In a UK poll, 40% of women and 18 % of men from a sample of over 6,200 people say they had experienced unwanted sexual behaviour in the workplace with 77% not reporting this mainly for fear of victimisation or feeling they cannot trust their employers.
What does it look like?
It is hard to tie down what this looks like, when asked simply if they were sexually harassed, people tend to report a lower rate than if they are given a specific list of acts, one victim describes this “I am unsure if it would be classed as 'sexual' harassment but within the last two years I have had to file multiple complaints about a male co-worker who was stalking me, sending unwanted mail to my house and who cornered me in the car park at work.”
What is the legal definition?
To reach the legal definition under the Equality Act 2010, the behaviour has to be
unwanted conduct of a sexual nature
have the purpose or effect of violating a person's dignity, (intended or unintended),
or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them (intended or unintended).
All employers, under the Equality Act (2010) are liable for acts of sexual harassment unless they have taken reasonable steps to prevent it.
If it doesn’t happen to you it can’t be seen
For obvious reasons, many serious forms of sexual harassment in the workplace happen in private yet senior leaders said that most employers believe it is not a problem because they haven’t seen it happening.
Female HR decision makers were almost twice as likely as men to say that sexism was a problem in their own workplace, 40% of female bosses versus 24% male bosses recognised this as an issue. This pattern is repeated in workplaces across the country but some are more toxic than others, in poll of 150 MPs for Young Women’s Trust, whilst more than half of female MPs had been personally aware of sexual harassment or abuse in Parliament, fewer than one in five male MPs said the same.
What is it like to report?
So let’s cover the obvious, sexual bullying in the workplace traces the fault lines of power and relates directly to other signs of inequality such as the gender pay gap and the lack of diversity. That power manifests itself in who is targeted and what happens when it is reported, one victim recalls “On reporting it to the other church leaders I was told to either shut up or leave my job. I was a single mum & needed the job so I put up with it for another 2 years.
Often the perpetrators are senior, the victims junior and therefore the implications of complaining are stacked against the victim, with organisations protecting seniority. Business in the Community research also showed that senior female staff are targeted as a tool to reassert control where male power feels threatened and put them back into their place. Add the vulnerability of job insecurity and intersectional targeting found on the basis of race and sexuality we see power enacted and maintained through harassment.
Formal routes or protections for reporting harassment, for example through a tribunal, puts all the burden: personal, financial, legal on the individual and all within 3 months of the incident. Experts have described this as ‘crushing’. HR disciplinary processes often lack transparency, use inappropriate mediation approaches, can be derailed and delayed by perpetrators going of sick. So women simply don’t report.
What are the impacts?
Most women make informal ‘adjustments’ like avoiding the perpetrator through withdrawing from work relating to them, or simply leaving. This excludes women from career progression, key sectors and leadership roles. Most woman just want it to stop and often it is easier to simply leave the organisation. The impact of sexual harassment in the workplace undermines the contribution of women with obvious large economic knock on effects. Failing to tackle sexual harassment at work is limiting women’s contribution to a whole sector of society and allows covert sex discrimination to continue. By the way, it is also bad for business.
There is also an element of learned behaviour in women taking responsibility for the sexual bullying directed against them. When combined with the ‘don’t make a fuss’ normalisation of sexual harassment and external victim blaming, shame creates a pathway to silence around sexual violence.
Added to this, Non Disclosure Agreements (NDAs) or ‘gagging’ clauses in employment or settlement contracts have been extensively abused to threaten, intimidate, bully and silence victims and are facilitated by the legal profession.
Gender based discrimination in workplaces marks out territory as reserved for heterosexual men who police this through sexual bullying and permissive environments for that harassment. Research is clear that men do experience sexual harassment as well and they may find it even harder to report. Toxic organisational culture can perpetuate sexual harassment and within certain fields with very male dominated, hierarchical structures, this is exaggerated by a lack of balancing perspectives from others. Duh, it's about diversity!
In some fields, the prevalence of sexual harassment may be so high it becomes wallpaper. At UWE we have lead the way in using the gap between anonymous prevalence estimates and reported levels of sexual harassment as a marker of progress in tackling sexual harassment, this has been taken on by the EHRC guidance (5.17).
Want to know more follow the links
See the EHRC guidance here
See the inquiry report of the Women and Equalities Select Committee here
See research on the Economic Impacts of sexual harassment by Heather Mclaughlin and team here