Sexual harassment in the workplace is a violation of women's human rights and a prohibited form of violence against women. Sexual harassment causes incalculable economic, psychological and physical harm to its victims and serves to reinforce the subordination of women to men in the workplace. Women from Central and Eastern Europe and the Commonwealth of Independent States report that sexual harassment in the workplace is a widespread problem exacerbating difficult economic conditions and damaging their ability to achieve equality with men.
Adapted from 2003 Report of the Special Rapporteur on Violence Against Women, Integration of the Human Rights of Women and the Gender Perspective:Violence Against Women, E/CN.4/2003/75(Jan. 2003)(PDF and Word, 24 pages); International, Regional and National Developments in the Area of Violence Against Women 1994-2003, Addendum 1 to 2003 Report of the Special Rapporteur on Violence against Women, E/CN.4/2003/75/Add.1 (Feb. 2003)(PDF and Word, 397 pages).
Definition of Sexual Harassment
Sexual harassment laws and policies adopted at the international and national level are not meant to inhibit normal socializing at work or relationships based on mutual consent. Rather, these laws are aimed at egregious conduct which serves as an obstacle to the equal participation of women in the workplace.
Over the last twenty years, laws prohibiting sexual harassment in the workplace have defined the term to include part or all of the following conduct:
The following acts are examples of behavior which may, under certain circumstances, be considered sexual harassment: sexual advances or propositions, offensive questions or comments about physical appearance or sex life, lewd comments, sexual jokes and insults, leering, the display of pornographic material designed to embarrass or intimidate an employee or student, condescending or paternalistic remarks, inappropriate touching, pinching, or cornering, sexual assault and rape.
Adapted from International, Regional and National Developments in the Area of Violence Against Women 1994-2003, Addendum 1 to 2003 Report of the Special Rapporteur on Violence against Women, February 2003 (E/CN.4/2003/75/Add.1)(PDF and Word, 397 pages); Directive 2002/73/EC of the European Parliament and of the Council of 23 Sept. 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; U.S. Equal Employment Opportunity Commission, Facts About Sexual Harassment (Feb. 2, 2007); Canadian Human Rights Commission, Harassment: What It Is and What To Do About It (1998); Indian National Commission for Women, Sexual Harassment of Women at Workplace, A Report (English), 2004; South African National Economic Development and Labour Council, Code of Good Practice on the Handling of Sexual Harassment Cases; Martha Chamallas, Introduction to Feminist Legal Theory, 5, 46-47 (2003); Katharine T. Bartlett et. al, Gender and Law: Theory, Doctrine and Commentary 552 (2002); Susan L. Webb, Shockwaves: The Global Impact of Sexual Harassment, Susan L. Webb (1994); International Labor Organization, Sexual harassment at work: National and international responses (2005).
Sexual Harassment and Human Rights Law
There are three ways in which sexual harassment in the workplace can be understood as a violation of fundamental principles of human rights law. Sexual harassment is a form of prohibited discrimination based on sex, a violation of the duty to provide safe and healthy conditions at work and an offense against dignity. These three approaches frame most international and national strategies to end sexual harassment which include preventive and corrective action under anti-discrimination civil law provisions as well as criminal, labor and tort law. See the Sexual Harassment Law and Policy section for more information concerning these strategies.
Sexual harassment is a form of discrimination that violates the equal protection or antidiscrimination provisions in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women (the Women's Convention), and the ILO Discrimination (Employment and Occupation) Convention (No. 111). For more information on these international human rights instruments see the international law section in Sexual Harassment Law and Policy. In 1992, the Committee on the Elimination of Discrimination Against Women (CEDAW), the committee charged with monitoring implementation of the Women's Convention, acknowledged in General Recommendation 19 that gender-specific violence, such as sexual harassment in the workplace, is a form of discrimination that "seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men." Seeking to encourage the elimination of this form of discrimination, the Beijing Platform for Action adopted at the 1995 Fourth World Conference on Women calls on governments and employers to "enact and enforce laws and develop workplace policies against gender discrimination in the labour market, especially …regarding discriminatory working conditions and sexual harassment" and to develop mechanisms "for the regular review and monitoring of such laws."
Sexual harassment constitutes a violation of the right to protection of health and to safety in working conditions under the Universal Declaration of Human Rights, the Women's Convention, the ILO Convention No. 155 (Occupational and Health) and the ILO Convention No. 161 (Occupational Health Services). CEDAW General Recommendation 19 also recognizes that sexual harassment may "constitute a health and safety problem." The Nairobi Forward-looking Strategies for the Advancement of Women, adopted at the Third World Conference on Women held in July 1985, emphasized that sexual harassment is a work related health hazard that should be prevented and corrected.
The Beijing Declaration and Platform for Action adopted at the 1995 Fourth World Conference on Women describe sexual harassment as a form of violence against women that is "incompatible with the dignity and the worth of the human person" and that "prevents women from making a contribution commensurate with their abilities." The Vienna Declaration and Programme of Action adopted at the 1993 World Conference on Human Rights also addressed sexual harassment out of concern for dignity. The Programme proclaims that "gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated"
International law dictates that a state may be held responsible for human rights abuses committed by private actors, including violations of the human rights principles described above. A national government would be responsible for a private actor's failure to prevent or correct sexually harassing behavior if that behavior rises to the level of discrimination on the basis of sex and if the government does not act with due diligence to fulfill its obligation under the Women's Convention "to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise." The United Nations Declaration on the Elimination of Violence Against Women reaffirms this principle. The Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras provides examples of steps a state must take to satisfy its obligation to adequately respond to a human rights violation. These steps include a serious investigation, an identification of responsible parties, the imposition of appropriate punishment on the perpetrators of the crime, and the provision of compensation to the victim(s). For more information on this subject see the section on State Responsibility for Private Acts of Violence.
Adapted from Robin Phillips, Violence in the Workplace: Sexual Harassment in Women and International Human Rights Law, Vol. 1, Eds. Kelly D. Askin & Dorean M. Koenig, 257 (1999); and The Advocates for Human Rights & Georgetown Law Center, Employment Discrimination and Sexual Harassment in Poland 45-50 (July 2002) (PDF, 63 pages). See also International Labor Organization, Sexual harassment at work: National and international responses 11-12 (2005).
Sexual Harassment and the Subordination of Women
Although sexual harassment may be viewed as a form of the more general concepts of harassment, bullying, mobbing or intimidation, it is considered to be a particularly harmful form of these activities because of its role in reinforcing the subordination of women to men and perpetuating obstacles to women in the workplace. While serving as United Nations Special Rapporteur on Violence Against Women from 1994 through July 2003, Radika Coomaraswamy explained that "[sexual harassment] is a personal attack on women's minds and bodies, instilling fear and violating a woman's right to bodily integrity, education and freedom of movement. It is utilized as a powerful mechanism of control and intimidation, through which women's subordinate social status is maintained. Sexual harassment frequently occurs on the street, in the workplace, in educational institutions and on public transportation. The more pernicious form, however, is sexual harassment in the workplace or in educational institutions. Sexual harassment strikes at the heart of women's economic self-sufficiency, disrupting women's earning capacity by forcing them out of the workplace or school. Women are nine times more likely than are men to leave their jobs as a result of sexual harassment."
From 1997 Report of the Special Rapporteur on Violence Against Women appointed by the UN Commmission on Human Rights.
Challenges for Newly Emerging Democracies Addressing Gender Equality in the CEE/FSU Region
Legislative and policy changes in the area of gender equality are sometimes hindered in the CEE/FSU region by a perception on the part of a few that gender equality was achieved in the region under the communist regimes in place from the 1950s through the 1980s. While women were encouraged to work under communism, women's participation in the work force "did not automatically guarantee women de facto equal status with men. One basic source of discrimination, for example, was the fact that women were defined and understood by society in terms of their role as both mothers and workers. Bearing the burden of the double workday and the accompanying responsibilities was a constant source of stress for many women and the formal benefits of the legislation had the reverse effect of actually reinforcing stereotypical roles and unequally distributing men and women's family responsibilities." From Open Society Institute, Monitoring the EU Accession Process: Equal Opportunities for Women and Men (2002) (citing in part Bulgarian Gender Research Foundation, The Impact of Privatisation on Women's Social and Economic Rights in the Period of Economic Restructuring in Bulgaria 12 (1999)).
In addition, proposed legislation favoring women in the workplace in emerging democracies in the CEE/FSU region is often challenged because it reminds some politicians of the communist policies requiring that political affiliation, national origin or gender determine representation in government or in the workplace rather than competence or skill. The gender equality movement in the CEE/FSU region is hampered also by economic constraints, a lack of effective enforcement of legislation and weak institutional infrastructures. With the privatization of the economies in the region and the loss of jobs across economic sectors, many women no longer are able to find work and are able to fulfill only their traditional roles of wives and mothers. With the process of market liberalization also came the erosion of women's labor rights in law and practice. The governments of the region have generally failed to enforce many laws applicable to employers or to create and fund appropriate institutions charged with monitoring and enforcing gender equality standards. The process by which many countries in the CEE/FSU region have or will accede to the European Union over the next few years has encouraged legislative and policy changes which may begin to reverse the trends described above.
Adapted from Open Society Institute, Monitoring the EU Accession Process: Equal Opportunities for Women and Men, 12-14, 28-29 (2002) (citing in part Bulgarian Gender Research Foundation, The Impact of Privatisation on Women's Social and Economic Rights in the Period of Economic Restructuring in Bulgaria (1999)).
Sexual Harassment in Educational Settings
The discussion of sexual harassment in this "Explore the Issue" section will focus on sexual harassment in the workplace as this is the form of sexual harassment that has been widely addressed under international law and national laws alike. It should be noted that national laws increasingly prohibit sexual harassment in educational settings because this behavior involves many of the same harms as sexual harassment in the workplace. For more information on sexual harassment in educational settings and laws which address this form of sexual harassment, please refer to the following sources:
U.S. Department of Education, Sexual Harassment Resources, Revised Title IX Policy Guidance, and Title IX, Education Amendments of 1972.
The National Education Association (NEA) often publishes guidance on sexual harassment in schools and universities.
American Psychological Association: Harassment in the Hallways.
Education International, Combating sexual harassment in schools (Sept. 2005)
Irish Equal Status Act, 2000
Australian Human Rights and Equal Opportunity Commission, Sexual Harassment and Educational Institutions: A Guide to the Federal Sex Discrimination Act
Australian Sex Discrimination Act of 1984—Section 28 F
Human Rights Watch: Violence against Schoolgirls (2006); Scared at School: Sexual Violence against Girls in South African Schools (2001); and Hatred in the Hallways: Violence and Discrimination against Lesbian, Gay, Bisexual and Transgender Students in U.S. Schools (2001).
Preventing Student Sexual Harassment, Wendy Schwarz, December 2000
Penn State University Delaware Campus, Information On Sexual Harassment.
1998 Elimination of Sexual Abuse and Sexual Harassment in Education Act of the Netherlands.
2001 Equal Treatment of Students at Universities Act of Sweden.
"Law in Peer-Created Sexually Hostile Educational Environment Cases Still Developing" and "Classroom Sexual Harassment and the Law: A Pennsylvania Experience" in Violence Against Women, Ed. Joan Zorza (2002).
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