Over the weekend an interesting article by Penelope Trunk (link) was posted by Marginal Revolution (link). The article concerns Ms. Trunk’s perception of the shifting dynamics of sexual harassment in the workplace, particularly with regard to the incidence of sexual harassment up (and down) the corporate ladder. Her hypothesis is that  the major hindrance to both men and women of submitting sexual harassment claims is that they will either lose their job or lose future opportunities for career advancement. Sexual harassment is from this point of view an exertion of power on the harasser’s behalf and will only ‘work’ if there is a corresponding obligation on the harassed to either submit to or keep quiet about the treatment suffered. Only those who have nothing to lose (i.e. their jobs) will risk coming clean about harassment and the people who have the most to lose are those higher up the corporate ladder. Using this line of reasoning Ms. Trunk predicts that in the future incidences of sexual harassment will be concentrated on men and women who are looking to climb the corporate ladder or maintain their position on it. What we should therefore see (if indeed such incidents are reported) is an increase in higher-value sexual harassment and discrimination claims.

The reasoning of the article is based on two main elements: the nature of sexual harassment and the power dynamics that operate between the harasser and harassed. Sexual harassment is defined legally under the Equality Act 2010. There are 3 different ‘types’:

  1. unwanted conduct that has the purpose or effect of creating a hostile, intimidating degrading or humiliating working environment or violating the worker’s dignity (unwanted conduct harassment)
  2. unwanted sexual conduct or harassment that has the purpose or effect of creating a hostile, intimidating degrading or humiliating working environment or violating the worker’s dignity (sexual conduct harassment)
  3. treating one employee less favourably than another because they have submitted to or refused to submit to sexual harassment or gender reassignment, with such conduct creating a hostile, intimidating degrading or humiliating working environment or violating the worker’s dignity (non-submission harassment)

Aside from the legal definition, it’s long been recognised that there are two main ‘forms’ of sexual harassment

  1. ‘quid pro quo’ (where the harassed receives or denies benefits – normally career-linked – for the fulfilment or non-fulfilment of sexual favours); and
  2. ‘hostile environment sexual harassment’ (where the harassed person’s work environment is made hostile, intimidating etc. because of the submission to or non-submission to sexual harassment).

Generally, the concept of such harassment has been expanded in recent years to include treatment of male workers as well as female workers but the root motivator of such behaviour is accepted as power (MacKinnon, 1979; Patai, 1998). The harasser is generally higher up the corporate ladder than the harassed and uses his (or her) ‘leverage’ to induce submission.

The incidence of such sexual harassment in England and Wales is unclear. There are no statistics available for sexual harassment itself; these figures are subsumed into sexual discrimination in the Employment Tribunal annual statistics. The most recent statistics detail 18,200 claims of sexual discrimination being made in 2009-10, a drop of approximately 32% from 2007-8.The reason for this is unclear – possibly a combination of a decrease in the incidence of sexual harassment, possibly workers being willing to swallow their grievances to avoid rocking the boat in times of recession. However, working against the ‘recessionary’ argument is an increase in almost all other forms of discrimination over the same period (again, though, this doesn’t account for the raft of 2006 SI’s relating to age, religious, sexual orientation etc. discrimination). What is clear from the variety of studies, however, is that sexual harassment is a pervasive problem in many workplaces and that the number of grievances brought – let alone the number of Employment Tribunal complaints brought – substantially underestimates the number of incidents of sexual harassment. A 1994 study of sexual harassment in Federal workplaces reported that 44% of the women employed and 19% of the men employed had faced some form of sexual harassment in the previous two years (Basu, 2004). The ratio of those suffering such treatment had stayed relatively consistent since the 1980 study on sexual harassment. Taking those figures (and laying aside the difficulty of transposing United States statistics on the UK) it is obvious that complaints brought in the Employment Tribunal are only the tip of the iceberg. Why, therefore, is this the case?

The law relating to sexual harassment and discrimination in the United States is, Ms. Trunk suggests, “murky”. This author is not in a position to commentate on United States law. However, English law (at least since 2010) is relatively straightforward with regard to complaints that can be made because of sexual harassment. The Equality Act 2010 (“EA 2010”) protects both sexes against directly discriminatory conduct, harassment (whether sexual or not) and victimisation (the suffering of a detriment because of a complaint under the EA 2010 and other legislation). Theoretically, therefore, there is a great deal of protection against discrimination, harassment and victimisation in the workplace.

The question is, is the legislation utilised by those suffering such conduct? The statistics quoted above would suggest not. Generally, from the author’s (admittedly subjective) experience, complaints only originate if the working relationship at the harassed person’s workplace has degenerated to such a degree that they want to leave their job anyway. A “batten down the hatches” mentality often exists where employees are willing to put up with the conduct for a benefit or the obviating of a disbenefit. Employees also don’t understand that they are protected under the EA 2010 from ‘retribution’ if they carry through complaints of discrimination or harassment in the workplace. From this (limited) account, the relative lack of complaints seems to stem from two sources: fear and ignorance- fear that workers will jeopardise their career by making a complaint and ignorance of the remedies available to them.

Whether Ms. Trunk’s hypothesis is a sound one is subject to debate. Is sexual harassment as calculated and rational as she suggests it to be or are perpetrators more in the “rutting chimpanzee” mould of Dominique Strauss-Kahn? Is the law as it stands an effective means of preventing and punishing workplace sexual harassment? Will we see an increase in higher-value discrimination claims? Are workers sufficiently aware of their workplace rights so as to assert them? If not, why not? What is clear is that the prevention of workplace harassment is a highly desirable goal. Equality law in England and Wales is now far accessible since the welcome EA 2010 and this increased clarity should, hopefully, lead workers to assert their rights more aggressively not to be discriminated against, harassed or victimised. Whether the new law tackles this fear and ignorance is not so clear.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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