Most sexual harassment law focuses on two forms of harassment: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment is the most commonly recognized form of sexual harassment. It occurs when job benefits, including employment and promotion, are made contingent on the provision of sexual favors, usually to an employer or supervisor. Hostile work environment sexual harassment is more difficult to identify and define. It occurs when an employee is subjected to conduct that has the purpose or effect of interfering with the employee's work performance or creating an intimidating or offensive work environment. Such harassment may include unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct based on the sex of the employee. This form of harassment is more difficult to identify than quid pro quo harassment because it does not involve a proposed or actual exchange of sexual favors for a condition of employment.
Articles 7 and 8 of Bulgaria's September 2003 Law on the Prevention of Discrimination define harassment related to sex and sexual harassment in a way that is consistent with the European Union's Equal Treatment Directive. Read together, these definitions cover both quid pro quo and hostile work environment sexual harassment. The definitions read as follows:
Harassment shall be any unwanted conduct related to the grounds referred to in Article 4(1) [including gender] expressed in a physical, verbal or any other manner, which has the purpose or effect of violating the dignity of a person or creating a hostile, degrading, humiliating or offensive environment, attitude or practice.
Sexual harassment shall be any unwanted conduct of a sexual nature expressed physically, verbally or in any other manner, which violates the dignity or honour of a person or creates a hostile, degrading, humiliating or offensive environment, attitude or practice and, in particular when the refusal to accept such conduct or the pressure to accept it could influence the taking of decisions affecting the person.
From Law on Prevention Against Discrimination of September 2003 (unofficial translation by the Bulgarian Gender Research Foundation).
United States Approach
The U.S. definition of sexual harassment explicitly includes both quid pro quo and hostile work environment harassment. Sexual harassment consists of "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" where:
1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
From 29 C.F.R. s. 1604.11(a) (current as of June 18, 2007).
The first two parts of the definition, describing submission to sexual behavior both when it is a "condition of . . . employment" and when it is used a "basis for employment decisions," highlight the fact that quid pro quo harassment may take place during the hiring process as well as in the workplace. The third part of the definition describes hostile work environment harassment.
Other definitions of sexual harassment may be less explicit in distinguishing the two forms of harassment. In Sweden, for example, sexual harassment is defined as "any type of conduct of a sexual nature in working life that violates the dignity of a job seeker or an employee." Sweden, Equal Opportunities Act, 2005, Section 16a. Swedish law defines “gender-related harassment” as “any type of conduct in working life that violates the integrity of a job seeker or employee and that is related to the person’s sex.” Equal Opportunities Act, Section 16a.
South African Approach
According to a South African policy document,
[s]exual attention becomes sexual harassment if: 1) The behavior is persisted in, although a single incident of harassment can constitute sexual harassment; and/or 2) The recipient has made it clear that the behaviour is considered offensive; and/or 3) The perpetrator should have known that the behaviour is regarded as unacceptable.
From the South African National Economic Development and Labor Council Code of Good Practices on the Handling of Sexual Harassment Cases, Section 3, available for download at http://www.nedlac.org.za/docs/agreements/main.html.
In interpreting the definition of sexual harassment in order to determine whether sexual harassment has occurred, courts may apply subjective or objective standards. South African government guidelines suggest applying a subjective standard, using the viewpoint of the victim to determine whether a perpetrator's conduct amounts to sexual harassment. In the United States, courts apply both a subjective and objective standard. Courts determine whether conduct is sexual harassment based on how the victim views the conduct and whether a reasonable person in the same or similar circumstances would view the perpetrator's conduct as sexual harassment. From Deborah Zalesne, Sexual Harassment in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms, Harvard Women's Law Journal, Vol. 25, 143, 164 (Spring 2002).
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