The #MeToo movement turned a spotlight, really for the first time in history, on the murky issue of workplace sexual harassment. As the Western world saw an outpouring of historical revelations, the magnitude of the problem became clear, and no industry went unscrutinised.
But in spite of the media interest, many remain unsure as to what legal protections they have from workplace sexual harassment, while an equally large number fear they don’t know the rules of this post #MeToo world. With Bloomberg recently reporting a steep decline in sexual harassment reports, some commentators feel that, despite the media fanfare, crucial lessons may not have been learnt.
For those who think sexual harassment looks like a coffee break grope from the boss, they may be surprised that the case law shows that sexual harassment includes a rather broader spectrum of behaviours. Here are five of the most pervasive sexual harassment myths, debunked:
Men can’t be harassed
First, anyone can be harassed, not just female employees. Employees can also be sexually harassed by people either of the same sex or the opposite sex.
In Basile v Royal College of General Practitioners, a male employee was found to be harassed by his male boss. The boss would make crude sexual hand gestures towards him and greet him with an unorthodox “how’s it hanging?”. Unsurprisingly, the tribunal found the greeting to be “laced with an element of sexual innuendo”.
It was a one-off – it doesn’t count
A single act can fall within the definition of unwanted conduct under the Equality Act 2010. In Insitu Cleaning Co Ltd v Heads, the defendant’s argument that ‘a man could not know whether his conduct was unwanted until it had been rejected’ failed. A one-off comment, a crude “hiya, big tits”, was deemed sufficiently serious to amount to sexual harassment. This case made it clear that would-be harassers cannot be allowed to ‘test the water’. When it comes to sexual harassment, once is one time too many.
It happened outside the office
Employers can face legal action for harassment in the workplace even if they are not aware it is taking place. However, there is an important exception. If the employer can show that they took all reasonable steps to prevent harassment, then they may have a defence to a claim.
Employees’ behaviour can be deemed ‘conduct during the course of employment’ in relation to after-work drinks, work-related social media postings, parties and client engagements.
He or she didn’t complain
In Munchkins Restaurant & Anor v Karmazyn & Ors, the defence argument failed when the tribunal pointed out that putting up with unwanted conduct for years did not mean it was welcomed.
Furthermore, tribunal judges are more than aware that sexual harassment is often an abuse of power over someone junior. Many people never report their harassment out of fear for their job and an assumption that their harasser will be shielded by the firm. There are exceptions, however; in Fairbank v Royal Mail Group Ltd, male staff bullied and sexually harassed their boss, who was the only woman in the workplace.
It’s just banter
Office banter or sexual harassment? It is up to the victim of the alleged harassment to decide whether or not a particular type of treatment is offensive to him or her personally.
In Minto v Wernick Event Hire Ltd, a female employee was subjected to daily remarks of a sexual nature. The tribunal held that ‘banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level. It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept or participate in this conduct to keep their job.
A tribunal made a similar finding in Furlong v BMC Software Ltd, where a senior vice president of the company groped the bottom of one female employee and told her that he would like to “eat her like a marshmallow”. The defendants here were also told in no uncertain terms that rather than ‘banter’ this was, in fact, sexual harassment.
Most HR professionals would probably agree that since #MeToo companies have become more sophisticated in handling sexual harassment allegations. But unless employees are confident in identifying it, no real progress has been made. With the issue now rarely far from the news agenda, familiarising yourself with sexual harassment law will benefit everyone.
Giulia Sinibaldi is a civil litigation specialist at Vardags