General Principles
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.

Core Elements of Sexual Harassment Laws
Sexual harassment can occur in multiple contexts and legislation should comprehensively address each of these in order to fully protect the rights of women and girls. This module includes specific information about harassment in employment, education, sports, housing, and provision of goods and services. In any context, however, laws prohibiting sexual harassment should include the following general components:
  • A statement of purpose, also known as a preamble, that references international, regional, and existing national protections against discrimination and violence against women;
  • A broad definition that includes examples of prohibited behavior;
  • Judicial and/or administrative procedures to enforce the prohibition on harassment, including confidential complaint procedures;
  • Provision for effective, proportionate compensation and/or reparation related to damages and losses suffered as a result of the harassment;
  • Dissuasive penalties for perpetrators;
  • Placing the burden of proof in civil proceedings on the alleged perpetrator, once a prima facie case is made;
  • Protections against retaliation;
  • Guidance for interpretation of the law;
  • Measures for prevention such as policy development, including confidential complaint procedures, and training;
  • Designated oversight body with the power to enforce the law, provide assistance to victims, collect data, and publish appropriate reports.
Guidance on Interpreting the Law
Sexual harassment legislation should include a directive for liberal interpretation by courts to effectuate the purpose of the legislation. Drafters may also wish to include a severability clause to ensure that if any part of the legislation is found to be invalid or inapplicable, all other aspects of the legislation should remain in effect.
 
Example: 
 
South African law provides guidance relative to legal interpretation and management of cases brought under its equality legislation:
 
Interpretation of Act
 
3. (1) Any person applying this Act must interpret its provisions to give effect to--
(a) the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination;
(b) the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act.
(2) Any person interpreting this Act may be mindful of--
 
(a) any relevant law or code of practice in terms of a law;
(b) international law, particularly the international agreements referred to in section 2 and customary international law;
(c) comparable foreign law.
 
(3) Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.
Guiding principles
 
4. (1) In the adjudication of any proceedings which are instituted in terms of or under this Act, the following principles should apply:
(a) The expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings;
(b) access to justice to all persons in relevant judicial and other dispute resolution forums;
(c) the use of rules of procedure in terms of section 19 and criteria to facilitate participation;
(d) the use of corrective or restorative measures in conjunction with measures of a deterrent nature;
(e) the development of special skills and capacity for persons applying this Act in order to ensure effective implementation and administration thereof.
 
(2) In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and
(b) the need to take measures at all levels to eliminate such discrimination and inequalities.
Remedies and Policy Development & Training
Remedy provisions in sexual harassment laws should reflect a policy of returning victims to the position they were in prior the harassment and should provide for dissuasive penalties.
 
Remedies for sexual harassment vary extensively depending on the facts of cases and on the type of laws or policies under which complaints are brought. Given this variety of approaches, remedies may range from reinstatement of a worker who was dismissed, to recovery of back pay and leave time, to policy changes in education or housing settings, to changes in working conditions, to awards of compensatory and punitive damages. Some perpetrators are also subject to criminal penalties.
 
Examples:
 
  • Philippine legislation provides that victims of harassment in the workplace or in educational and training institutions can access civil, administrative, and criminal remedies. (See: Republic Act No. 7877, sec. 4-5) Moreover, victims in the Philippines can pursue civil cases against both employers and the individual perpetrator.
  • Benin’s law is one of the few that lists specific remedies available to judges in cases in which a child is sexually harassed. [internal link to Benin case study below] Benin’s law also makes accomplices in sexual harassment cases liable for the same punishment as perpetrators. (See: Loi sur le Harcelement Sexuel)
  • In the United States, victims of workplace sexual harassment are required to file claims with the federal Equal Employment Opportunities Commission, or with a state-level equivalent, before they can file a private suit against an employer. (See: EEOC, Filing a Charge of Discrimination) Victims of sexual harassment in housing in the United States can bring claims to their local police, state and federal housing authorities, or can file a civil claim in court.
  • Australian law gives the courts power to order apologies, although this remedy is not often sought. See: Sexual Harassment Prevention, Ius Laboris, 2012.
 
Example: Minnesota’s Harassment Restraining Order Law
Some criminal laws not only punish perpetrators but also provide special protective remedies for victims of harassment. In the U.S. state of Minnesota, for example, anyone who is being harassed can apply for a Harassment Restraining Order. See: Harassment Restraining Order, Women’s Law.org. The law applies to harassment in any context, no matter what the relationship of the victim to the perpetrator. A temporary restraining order can be issued even without the harasser present in court, “if the court finds reasonable grounds to believe that the respondent has engaged in harassment.” See: Minn. Stat. sec. 609.748, subd. 4. A perpetrator who violates a restraining order is subject to criminal penalties. (See: Harassment Restraining Order, Women’s Law.org; Minn. Stat. sec. 609.748, subd. 6. See also Sexual Assault/Domestic Violence Sections).

   

Policy Development & Training

  

  • Laws on sexual harassment, whether criminal or civil, should require prevention, policy development, and training of those covered by and charged with implementing the law. These issues are addressed in detail in the context-specific sections included in this sub-section.
  • Laws should require that anti-sexual harassment policies be put in place across sectors. Laws should mandate the creation of organizational policies that include internal complaint mechanisms to allow victims to raise claims of sexual harassment without having to file a formal civil or criminal complaint. Victims of harassment are much more likely to raise concerns in an informal complaint process. Policies should require that immediate action be taken with respect to sexual harassment claims. This involves documenting the complaint, taking measures to stop any alleged harassment, beginning an investigation, and providing support for the victim.
  • Anti-sexual harassment training of public sector and private sector employees should be required, so as to aid in prevention of sexual harassment not only in the workplace, but in the educational, housing, sporting, and service provision contexts.