20 November 2017


Sexual Harassment

Sexual Misconduct / Harassment

Sexual harassment in the news

There may be a number of reasons for the lack of details in press reporting of recent incidents of alleged sexual harassment. It is not easy to understand in each case what the alleged perpetrator is said to have done. The spectrum of what can amount to sexual harassment as a matter of law is somewhat wide.

But perhaps one lesson that the incidents we have heard about may teach us is that there is a need for much more detailed sexual harassment policies than you see today in many organisations. These policies very often do not contain a full and illuminating definition of sexual harassment – a few examples are really not sufficient to describe the many and varied ways in which words or actions can amount to sexual harassment. There should be extensive examples.

In certain organisations where a high level of trust is involved you currently see policies that are very prescriptive about what those governed by the policies are allowed to do – a touch on the elbow may be acceptable but a touch on the shoulder not. Whatever you think about where the line is drawn, this approach at least provides certainty and that has a good deal to commend it and perhaps now needs to be adopted more widely.

The other way in which policies might improve is to emphasise that a person may be guilty of sex harassment where the effect is to create a hostile and intimidating environment, even where that was not the perpetrator’s intention – as such it is important that those reading the policy understand that the perspective of the victim is critical.

Lastly, another way in which many policies fall down is the lack of emphasis on the protection afforded by the law to the complainant – that is, that the law prevents the complainant suffering from detriment at the hands of the employer, public service provider, academic or training institution etc., where the complainant makes a complaint of sex harassment.

Those who may have suffered sex harassment need to be provided with much more information about the protection the law will give them – and the support and protection the organisation will also guarantee should a complaint be made, in every case other than where an allegation is false and made in bad faith.

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