Drafting Laws on Sexual Harassment
last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Overview and Definition of Terms
Throughout this knowledge asset, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.
 
Some of the laws cited herein may contain provisions which authorize the death penalty. In light of the United Nations General Assembly resolutions 62/14963/168, 65/206, and 67/176 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls.
 
A law that defines and provides remedies for sexual harassment is a critical element of protecting the rights of women and girls. When there is no legal provision related to sexual harassment, denial about the problem can be pervasive and women have little redress. In Chile, for example, the Department of Labor received only 61 complaints of sexual harassment in the year before Chile’s law was passed. Following passage of the sexual harassment law, the same office received more than 1900 complaints in a year. (See: Daniela Estrada, Sexual Harassment Law Finally Approved After 13 Years, 2005)
 
In its Handbook for legislation on violence against women, the United Nations Division for the Advancement of Women has identified several key areas that laws related to sexual harassment should address. In section 3.4 the UN Handbook specifies that legislation should:
  • Criminalize sexual harassment;
  • Recognize sexual harassment as a form of discrimination;
  • Recognize sexual harassment as a violation of women’s rights with health and safety consequences;
  • Recognize that harassment occurs in both vertical (such as between teacher and student or between manager and employee) and horizontal power relationships (such as between employees at the same level);
  • Provide effective criminal, civil, and administrative remedies for victims;
  • Address harassment in multiple sectors including public places, employment (formal and informal sectors), education, housing, commercial transactions, provision of benefits and services, and sporting activities.

 

Definition of Terms Used in this Chapter
 
Harassment: To create an unpleasant or hostile environment, especially through uninvited physical or verbal conduct.
 
Sexual behavior: This means actions, language or visual materials which specifically refer to, portray or involve sexual activity or language. Conduct of a sexual nature may include overt sexual solicitations, inappropriate touching, sexual jokes and inquiries about a person’s sex life.
 
Sex-based behavior: Sex-based behavior occurs because of the sex of the intended victim but is not necessarily sexual in nature. Examples of this kind of behavior are disparaging comments on the role of women, or discriminatory treatment aimed only at women.
 
Assault: Infliction of offensive physical contact or bodily harm or the threat or attempt to inflict such conduct or harm. 
 
Peer-to-peer harassment: Harassing behavior between individuals considered to be equals in the context in which the harassment takes place, such as a student harassing a fellow student, athlete harassing a fellow team member, employee harassing another employee at the same level.
 
Quid pro quo harassment: Also referred to as abuse of authority, occurs when (1) job benefits, including employment, promotion, salary increases, shift or work assignments, performance expectations and other conditions of employment, are made contingent on the provision of sexual favors, usually to an employer, supervisor or agent of the employer who has the authority to make decisions about employment actions, or (2) the rejection of a sexual advance or request for sexual favors results in a tangible employment detriment.
 
Hostile-environment harassment: Harassment that does not result in a tangible employment-related action such as displaying pornography, touching and grabbing, and sexual or sex-based remarks or jokes.
 
Cyber-harassment: The use of new media and web-based technology to carry out harassment, such as unwanted emails, text messages, and posting on social network sites such as Facebook.
 
Sources of International Law Related to Sexual Harassment
The United Nations and regional treaty systems have recognized sexual harassment as a form of discrimination and violence against women. International statements of law and principle provide an important starting point in drafting legislation that prohibits sexual harassment.
 
United Nations

General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women (Art. 4(d-f)). The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) directs States Parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life. (Arts. 7-16). Moreover, the Beijing Platform for Action, para. 178, recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple actors including government, employers, unions, and civil society to ensure that governments enact and enforce laws on sexual harassment and that employers develop anti-harassment policies and prevention strategies.

International Labour Organization (ILO)

The ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.

African Union & Subregional Bodies
  • Eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;
  • Protect women from all forms of abuse (including sexual harassment);
  • Ensure transparency in recruitment, promotion and dismissal of women, and combat and punish sexual harassment in education and the workplace. (See: Articles 12-13)
Sub-regional bodies in Africa also have addressed sexual harassment. For example, the Southern African Development Community Protocol on Gender and Development, in article 22, requires that states parties by 2015 must:
 
"enact legislative provisions, and adopt and implement policies, strategies, and programmes which define and prohibit sexual harassment in all spheres, and provide deterrent sanctions for perpetrators of sexual harassment."
 
The protocol has been signed by Angola, Democratic Republic of Congo, Lesotho, Madagascar, Mauritania, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. The Economic Community of West African States, which includes Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo, also has put in place regional policy on sexual harassment in the workplace and in educational institutions. (See:Office of the Commissioner on Human Development and Gender)
Europe

The Charter of Fundamental Rights of the European Unionspecifically enshrines the right to be free from discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. This principle has been further elaborated through several directives dealing with sexual harassment, including Directive 2006/54/EC related to equal opportunities in employment and the Directive 2004/113/EC related to equal treatment in access to goods and services. These directives require member states to incorporate into national law the following principles:
  • The Charter of Fundamental Rights of the European Union prohibits discrimination on the grounds of sex and enshrines the right to equal treatment between men and women in all areas, including employment, work and pay, vocational training, and access to goods and services; 
  • Clarify that sexual harassment constitutes discrimination on the grounds of sex; 
  • Prohibition, at a minimum, of behavior meeting the Directives’ definition of sexual harassment in the workplace and in the provision of goods and services;
  • Encourage employers to take measures to combat all forms of sexual discrimination and prevent harassment in the workplace.
The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is the first legally-binding instrument in Europe on violence against women and domestic violence. It obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. In addition states must involve all relevant actors in the implementation of the Istanbul Convention, including national parliaments and institutions and non-governmental and civil society organizations.
 
Article 40 states that “Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction.”
 
The Istanbul Convention entered into force on August 1, 2014. An ongoing list of signatures and ratifications can be found here. Available here in 28 languages.
 
Organization of American States

The Organization of American States treats sexual harassment as an issue of violence against women, instead of a discrimination issue. Accordingly, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belem do Para) affirms the right of women to be free from violence, including sexual harassment in employment or any other context, and requires states to impose penalties and enact legal provisions to protect women from harassment and other forms of violence. Article 2 states that sexual harassment in the workplace, educational setting, health facilities, or any other place constitutes violence against women.
 
Placement of Sexual Harassment Laws in National Legislation
Although often associated with the workplace, sexual harassment can occur in many contexts. Accordingly, drafters should review a broad spectrum of national legislation to determine where provisions on sexual harassment may need to be included. Around the world, sexual harassment provisions are found in criminal codes, labor codes, health and safety legislation, anti-discrimination and equal opportunity laws, as well as education and licensing statutes, to name a few. Approaches to and Remedies under Sexual Harassment Law – Civil Law, StopVAW, The Advocates for Human Rights.)
 
In some countries, sexual harassment is addressed through laws related to assault or defamation. This approach is not ideal, however, as it does not recognize the specific gendered aspects of sexual harassment, it does not recognize harassment as a form of discrimination, and it does not provide for specifically tailored remedies. A preferable approach ensures that sexual harassment is included as a specific form of prohibited discrimination in broad-based anti-discrimination legislation. In many national contexts, a code-specific approach is also used, e.g., prohibiting discrimination through the labor code, health and safety legislation, licensing statutes, etc.
CASE STUDY – Pakistan (See also Pakistan Case Study in the Advocacy Section)
 
In Pakistan, two different laws were proposed to ensure that women in all work environments are fully protected. As in many emerging economies, women in Pakistan work both in the formal and informal sectors, and women’s rights organizations realized that different legislative approaches were needed to ensure protection for women in different sectors of the economy. A 2010 civil law changed the way that claims of sexual harassment are handled in the formal employment sector. The law makes mandatory the implementation of policies that have been voluntarily adopted by many employers, called The Code of Conduct for Gender Justice at the Workplace. The law requires that employers in Pakistan incorporate the Code of Conduct into their workplace policies and establish Inquiry Committees to investigate claims of sexual harassment. A law to amend Pakistan’s Penal Code and Code of Criminal Procedure also expanded the definition of sexual harassment to cover the workplace and increased the penalties for perpetrators. The criminal code amendment was the result of ongoing consultation with women working in the informal sector, such as agriculture and markets, who voiced concern that measures proposed to establish workplace grievance committees, for example, might not work effectively to protect them. The criminal law in Pakistan now allows for a term of imprisonment of up to three years and a fine of up to 500,000 rupees, or both. See: Criminal Law (Amendment) Act, 2009; Nosheen Abbas, Sexual Harassment in Pakistan (Dec. 16, 2009); Protection Against Harassment at the Workplace Act.
 
 
Examples:
 
In Argentina, sexual harassment is prohibited in Law No. 26485, which addresses discrimination and violence against women generally.  However, for public sector employees, sexual harassment was specifically prohibited by Executive Order, No. 2385/93.
 
In Panama, sexual harassment is addressed in the labor code, the penal code, and in a law specifically prohibiting sexual harassment in public employment. (See: Act No. 9 of 20 June 1994; Act. No. 44 of 1995; Law No. 38 of 2001.
 
In Canada, New Zealand, and Fiji, among other nations, sexual harassment is prohibited in national human rights legislation.
 
In Israel, sexual harassment is a criminal violation and a civil violation, so perpetrators can be criminally charged as well as sued.
Venezuela’s law specifically addresses sexual harassment as a form of violence against women.