Authored By Gabriel Kuot Akok
ABSTRACT
This research paper will examine the concept of sexual harassment under the Labour Laws of East African Countries with the major objective to evaluate its effects on the employees, access the legal consequences of sexual harassment and examine how to combat sexual harassment in the workplaces, how can one file a complaint of sexual harassment, ascertain minimum rights that an harassed person is entitled, ascertain regional legal frameworks that are protecting the rights of employees.
The continuous outcry of the citizens on the sexual harassment in the workplaces in East African Countries in general and South Sudan in particular motivated this study. The major findings of the study found that organizations typically have three primary responses to combat sexual harassment: ignoring complaints or harassment, firing an harasser, and/or offering sexual harassment training.
This study therefore advances that the individuals (workers) who experience sexual harassment must have an ability to fight back, with the support of robust processes within the workplace that have teeth and result in meaningful consequences when misconduct occurs and that the government should vigorously enforce the law at all levels. This will serve as a deterrent to others. There is the need to strengthen institutions such as the Ministry of Labour and Public Service, Employees Justice Chamber, Human Rights Commission, Public Grievance Chamber, Labour Court, Labour Inspectorate, Parliament and the judiciary, which in turn will create interlocking systems of oversight and self-regulation. All of these institutions have to be active players in the fight against sexual harassment in the workplaces and respect for employees rights should be entrenched.
INTRODUCTION
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.
The victim should use any employer complaint mechanism or grievance system available.
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
SEXUAL HARASSMENT UNDER THE LAWS OF SOUTH SUDAN
Sexual harassment is prohibited under the Penal Code Act, 2008. In accordance with section 395 of the Penal Code, whoever uses his or her position of authority or advantage to offer a benefit in exchange for sexual favors; intimidate another person or threaten retaliation if such person refuses to engage in any type of sexual relations; and engage in any unwanted physical contact of a sexual nature with respect to another person, including, but not limited to inappropriate touching, commits the offence of sexual harassment. Whether a particular act constitutes sexual harassment is a matter of fact, which depends on the character and nature of the parties.
Section 396 of the Penal Code Act, 2008 provides that whoever intentionally engages in sexual harassment commits an offence, and once convicted, is liable to imprisonment up to three years, or fine or both.
The Labour Act, 2017 under section 5 defines sexual harassment as deliberate sexual comments and gestures, implicit or explicit, of any conduct of sexual nature that is unwanted, embarrassing, demeaning or compromising. It can be a single incident or occur over a period of time. Following acts consist of sexual harassment: sexual or insensitive jokes, lewd suggestions, whistling, foul language, slurs, innuendos, leering and obscene gestures; belittling comments on a person’s anatomy or persistent demand for dates; asking for sexual favours; unwanted physical contact; display of pornographic or sexually suggestive pictures; indecent exposure; sexual assault or rape; and unwelcome sexual advances.
An employer in accordance with section 7 of the Labour Act is to ensure that no person sexually harasses an employee during the course of the employee’s work for the employer. Employers are required to issue a policy statement on harassment in consultation with workers’ representatives where the number of employed workers is 20 or more. The employer is to make rules and regulations against sexual harassment to govern employer and employees at the workplace.
What is sexual harassment in context of Uganda labour law?
It refers to intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors.
How can an employee be sexually harassed?
An employee is sexually harassed if that employee’s employer, or a representative of that employer:
(a) Directly or indirectly makes a request of that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains:
- an implied or express promise of preferential treatment in employment;
- an implied or express threat of detrimental treatment in employment;
iii. an implied or express threat about the present or future employment status of the employee.
(b) Uses language whether written or spoken of a sexual nature.
(c) Directly or indirectly makes a request of that employee for sexual intercourse, or sexual intimacy.
(d) Uses visual material of a sexual nature.
(e) Shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
What should an employee do when sexually harassed?
The employee can lodge a complaint with a labour officer and the labour officer shall have the power to make all of the orders he or she could have made if the complaint was about an unjustified disciplinary penalty or unjustified dismissal.
What is the employer expected to do?
Every employer who employs more than twenty five employees is required to have in place measures to prevent sexual harassment occurring at their workplace.
Sexual Harassment at the Workplace under the Labor Law of Kenya
Sexual harassment is a form of discrimination and a human rights violation. It is intentional, insensitive and is meant to make the victim more powerless and lower the victim’s dignity. This is because it involves power play whereby the perpetrator uses sexuality as a tool of power and domination. Sexual harassment at the workplace is prohibited by law.
The International Labour Organization, Discrimination (Employment and Occupation) Convention, 1958 (No. 111) defines discrimination as any distinction, exclusion or
preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
The International Labour Organization calls upon each member state to promote equality of opportunity and treatment in respect of employment and occupation with a view of eliminating any discrimination thereof.
In line with this, the Constitution of Kenya under Article 27 protects every Kenyan against all forms of discrimination and violations against their rights. The constitution states that all citizens are equal before the law and have the right to equal protection and equal benefit of the law.
Article 28 states that every person has inherent dignity and the right to have that dignity protected.
Article 29 further states that every person has the right to freedom and security of the person, which includes the right not to be subjected to any form of violence or torture in any manner whether physical or psychological.
Section 23(1) of the Sexual Offences Act No.3 of 2006 states that sexual harassment is the persistent unwelcome sexual advance, request for sexual favour and other verbal, visual or physical conduct of a sexual nature by a person in a position of authority.
Section 23 (2) further states that the victim’s submission to the advances is intended to be used as the basis of employment or of a decision relevant to the career of the alleged victim, and that such advances have the effect of interfering with the alleged victim’s work or educational performance or creating an offensive working or learning environment for the alleged victim or denial of a service.
Section 6 (1) of the Employment Act, Laws of Kenya defines sexual harassment at the work place as an instance where an employer, a representative of that employer or a co-worker directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, a threat of detrimental treatment in employment or a threat about the present or future employment status of the employee. It also describes sexual harassment at the workplace as the use of language whether written or spoken of a sexual nature, the use of visual material of a sexual nature or showing physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
Section 6 (2) of the Employment Act, Laws of Kenya states that all employers with more than 20 staff are supposed to create a policy prohibiting sexual harassment at the work place. It is, however, good practice for all employers to have the policy irrespective of how many employees they have. Under section 6 (3) of the Employment Act, the policy must contain the definition of sexual harassment specified in section 6(1).
It must also contain a statement that every employee is entitled to employment that is free of sexual harassment, that the employer shall take steps to ensure that no employee is subjected to sexual harassment and that the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment. It shall also explain how complaints of sexual harassment may be brought to the attention of the employer and that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.
There are two forms of sexual harassment:
- Unsolicited conducts.
These are in four forms; Physical, Verbal, Non-verbal and Sexual-bribery.
(I) Physical unsolicited conduct is where a victim is touched inappropriately and against his/ her own will. It includes groping, unwelcome physical contact like massaging someone without invitation, grabbing someone in a sexual manner, rubbing genital organs on another.
(II) Verbal unsolicited conduct takes both oral and written forms. This could include sexually charged verbal comments, jokes or insults.
(III) Non-verbal unsolicited conduct is the use of visual media like photographs and videos to pass inappropriate sexual messages or make inappropriate sexual advances
(IV) Sexual favouritism/ Sexual- bribery
This involves soliciting sexual activity by either promise or reward. A victim either gets punished for opposing sexual advances or gets favoured or rewarded for accepting sexual advances.
Key to note is that sexual harassment is an offence punishable under Section 23 of the Sexual Offences Act, Laws of Kenya. A perpetrator of sexual harassment is liable to imprisonment for a term of not less than 3 years or to a fine of not less than 100,000 Uganda shillings or to both.
What does the law say about sexual harassment in Tanzania?
The law prohibits any form of sexual harassment in the workplace as well as any other environment. The Employment and Labour Relations Act, 2004 does not state much on sexual harassment, but it has called sexual harassment a form of discrimination, prohibited it and provided for a penalty of fine not exceeding five million shillings.
However, the Code of Ethics and Conduct for Public Service is very clear and detailed on the areas of sexual harassment and what constitutes sexual harassment in employment. It says:
A public servant shall refrain from having sexual relationships at the workplace. Likewise he/she will avoid all types of conduct which may constitute sexual harassment which include:
- i) Pressure for sexual activity or sexual favors with a fellow employee.
- ii) Rape, sexual battery and molestation or any sexual assault.
iii) Intentional physical conduct which is sexual in nature such as unwelcome touching, pinching, patting, grabbing and or brushing against another employees body, hair or clothes.
- iv) Sexual innuendos, gestures, noises, jokes, comments or remarks to another person about one’s sex or body.
- v) Offering or receiving preferential treatment, promises or rewards and offering or submitting to sexual favours.
Is there any other legislation in Tanzania providing for Sexual Harassment?
The Sexual Offences Special Provisions Act, 1998 has also criminalised sexual harassment and the following are termed as kind of behaviours amounting to sexual harassment: Causing sexual annoyance to a person, uttering any word, making any sound or gesture, or exhibiting any object, including any organ whether male or female intending that such word or sound shall be heard, or that the gesture shall be seen by a woman.
Are there any measures imposed by the law to us employers to eliminate Sexual Harassment at the place of work?
The law requires every employer to strive to eliminate sexual harassment/ discrimination in any employment policy. The law has gone to the extent of wanting employers to register a plan to eliminate discrimination at the work place with the Labour Commissioner.
How can one file a complaint of Sexual Harassment?
Sexual harassment is treated as a grievance and for organisations which have Grievance Procedures Manual, an employee will be required to follow the procedure outlined therein.
The common procedure outlined under the law is for the complainant to lodge a complaint in writing to the manager or supervisor. That manager will call the complainant and the suspect and if need be their representatives and resolve the matter. If that same manager/supervisor is the suspect then another manager higher in rank will be summoned.
The grievance will then be handled internally and if one is not comfortable with the outcome of the grievance or the way it was handled the law allows this person to lodge an appeal to the Commission for Mediation and Arbitration. At the Commission for Mediation and Arbitration the dispute will pass first through the stage of mediation; if mediation fails then it will be referred to arbitration for a decision. If it succeeds then the matter ends there and parties return to their normal duties.
For organisations which do not have an internal grievance the complaint can be lodged straight with the Commission for Mediation and Arbitration as a dispute.
SEXUAL HARASSMENT UNDER LABOUR LAW OF RWANDA
Labour Code prohibits sexual harassment of women at workplace. Labour code prohibits any kind of physical, psychological or sexual gestures or actions directed at a person or an assault on their property on the grounds of their sex. Such action or gesture deprives them of their rights and negatively affects them
If a worker resigns after being victim of violence and sexual harassment at work, the dismissal is considered unfair dismissal. A worker must not be dismissed on reporting or having testified of violence.
Any employer or any other person guilty of exercising sexual harassment by way of orders, intimidation and terrorizing a person he/she leads is liable to imprisonment of two years to five years and a fine between one hundred thousand Rwandan francs and two hundred thousand Rwandan francs.
Sexual harassment under the Laws of Burundi
Article 1(1)(a) of the Convention. Discrimination on the basis of sex or gender. Gender-based violence. The Committee notes with interest the adoption of Act No. 1/13 of 22 September 2016 concerning the prevention and suppression of gender-based violence and victim protection, which defines and punishes, inter alia, the concept of gender-based violence, including sexual violence, sexual harassment, gender-hostile traditional practices and economic violence, which is defined as denying a spouse access to family resources or forbidding a spouse to work. The Committee also notes that, under section 14, any employees who are victims of gender-based violence in or outside the workplace have the right, at their request and subject to a doctor’s approval, to a temporary reduction or reorganization of hours of work, to a geographical transfer, to assignment to another workplace, to the suspension of their employment contract (following which employees can resume their contracts) and to resignation without notice. In this respect, the Committee would like to draw the Government’s attention to the fact that resignation with or without notice must not be used in practice as the only means of ending the violence and obtaining compensation but rather should be a last resort since this would amount to punishing the victims through the loss of their jobs (double penalty). The Committee notes that Act No. 1/13 also provides that “any employer who violates the rights of a person on the basis of his/her sex which are set down in the Labour Code and its implementing regulations, shall be liable to a fine of 500,000 to 1 million Burundian francs”.
The Committee asks the Government to provide information on the following points:
(i) the implementation and application in practice of Act No. 1/13 of 22 September 2016 with regard to employment and occupation, indicating the number and type of cases of gender-based violence dealt with by the labour inspectorate and the courts and also the penalties imposed;
(ii) the steps taken or contemplated to inform and raise the awareness of employers, workers and their respective organizations, labour inspectors, judges and also the general public as regards action against gender-based violence, including the steps taken to publicize the content of Act No. 1/13; and
(iii) the activities of the Independent National Human Rights Commission (CNIDH) against gender-based violence in employment.
In addition, the Committee asks the Government to indicate whether it envisages carrying out an inventory of laws that are discriminatory towards women in order to bring them into line with the Constitution and ratified international instruments, as recommended by the CNIDH.
Sexual harassment. The Committee recalls that section 563 of the Penal Code, as amended in 2009, includes a provision defining sexual harassment as “the act of subjecting another person to orders, threats or physical or psychological coercion, or serious pressure, with a view to obtaining favours of a sexual nature by abusing the authority inherent in his or her functions”, but does not cover either hostile work environment sexual harassment or acts committed by a work colleague or a person connected to the job (such as a customer or supplier). The Committee notes that Act No. 1/13 of 2016 defines sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, whether between equals or in a hierarchical situation; the act of subjecting another person to orders, threats or physical or psychological coercion, or serious pressure, with a view to obtaining favours of a sexual nature by abusing the authority inherent in his or her functions”. The Committee observes that this definition covers more forms of sexual harassment, including sexual harassment by a person who has no hierarchical connection with the victim. However, it notes that this definition does not cover the concept of a hostile, offensive or humiliating work environment created by certain forms of conduct with sexual connotations. While noting in particular the progress achieved through the adoption of Act No. 1/13 of 2016, the Committee asks the Government to examine the possibility of expanding the definition of sexual harassment by adding the notion of a hostile, offensive or humiliating work environment, and asks it, in the absence of any specific provision towards this end in the Act of 2016, to specify the procedure to be followed and the penalties that apply in cases of sexual harassment. The Committee also asks the Government to provide information on the practical steps taken to prevent and eliminate sexual harassment in the public and private sectors, including measures designed to raise the awareness of employers, workers and their respective organizations with regard to the prevention and treatment of sexual harassment.
Article 2. Equality of opportunity and treatment for men and women. The Committee notes that, according to the National Employment Policy Paper of 2014, some progress has been made on equality but profound inequalities persist in terms of access to initial employment and to managerial posts and as regards conditions of work. These inequalities are due to various forms of discrimination and the social distribution of labour and the exclusive role of women in the area of childcare and domestic tasks. In this regard, the Committee notes that the National Employment Policy states that it will be necessary to encourage enterprises to take steps to achieve a better balance between work and family life and to improve women’s access to productive resources. It also provides for the possibility of establishing a 30 per cent quota for women at all hierarchical levels in the public and semi-public administration on a trial basis, and also for the use of anonymous employment resumés and the promotion of vocational training.
The Committee further notes that Act No. 1/13 of 2016 provides that the Government must formulate and implement a gender policy, submit a report on its implementation to the National Assembly (sections 3 and 4) and adopt awareness-raising measures to “modify structures and models of socio-cultural behaviour for men and women to eliminate customary or other practices based on the notion of the inferiority or superiority of either sex or stereotypical roles of men or women” (section 5).
The Act establishes the obligation for parents or any other persons in charge of children to give equal treatment to boys and girls in all aspects of life and to protect them against any gender-based violence (section 8). Public authorities must take steps to give girls and boys equal access to education, and school directors must ensure that single mothers’ right to education is respected. In this regard, the Committee notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations, welcomed the measures adopted by Burundi to increase the school enrolment and retention rates for girls, including the adoption of a policy on the reintegration of girls into school after pregnancy (CEDAW/C/BDI/CO/5-6, paragraph 34). While welcoming all of these provisions and measures, the Committee asks the Government to provide information on their implementation in practice and the results achieved, including with regard to increasing the rate of school enrolment and vocational training for girls and improving women’s access to productive resources and to employment including to managerial posts in the public and private sectors.
The Committee also asks the Government to indicate whether a new national gender policy, replacing the one adopted in 2012, has been formulated and, if so, to provide details on those sections relating to gender equality in employment and occupation.
Indigenous peoples. The Committee recalls that it has been drawing the Government’s attention for a number of years to the stigmatization and discrimination faced by the Batwa people and notes that the Government’s report does not contain any information on this matter. The Committee notes that, in their respective concluding observations, CEDAW emphasizes that access to education for Batwa girls is very limited (CEDAW/C/BDI/CO/5-6, 25 November 2016, paragraph 34(b)) and the United Nations Committee on Economic, Social and Cultural Rights expresses concern at the lack of effective measures for combating the discrimination faced by the Batwa, particularly with regard to ensuring the effective exercise of their economic, social and cultural rights (E/C.12/BDI/CO/1, 16 October 2015, paragraph 15).
The Committee urges the Government to take the necessary steps to ensure equal access for the Batwa people to education, vocational training and employment, including to enable them to exercise their traditional activities, and also steps to combat stereotypes and prejudice against this indigenous community and to promote tolerance among all sections of the population. The Committee also asks the Government to provide information on the impact of Act No. 1/07 of 15 July 2016 revising the Forestry Code, which provides that the rational and balanced management of forests is based, inter alia, on the principle of participation by the grassroots communities, and on the exercise of traditional activities by the Batwa on the land where they live. The Committee is raising other matters in a request addressed directly to the Government.
REGIONAL LEGAL FRAMEWORKS
Regional legal instruments may also clarify States’ obligations to protect the rights of women and girls and eradicate not only the violence but also the discrimination upon which it is based. This is particularly the case, where:
States are not party to international instruments but are to regional ones,
Regional legal standards provide more detailed and/or higher standards, and
Regional courts are able to investigate acts when they occur, to prosecute and punish the perpetrators, and to provide redress and relief to the victims.
Some key regional instruments that are particularly relevant to the protection of women and girls include:
- Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003),
- African Charter on the Rights and Welfare of the Child (1990),
- African Youth Charter (2 July 2006),
- Convention on the Prevention Punishment and Eradication of Violence against Women (Convention of Belem do Para) (1994),
- Inter-American Convention on International Traffic in Minors (1994),
- Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities (1999),
- Organization of the Islamic Conference (OIC) Covenant on the Rights of the Child in Islam (June 2005)
- Council of Europe Council Convention on Action against Trafficking in Human Beings (2005).
- The International Conference on the Great Lakes Region (ICGLR), Kampala Declaration on Prevention of Gender-based Violence in Africa (2003). (For more information see International Conference on the Great Lakes Region (ICGLR); See a summary of ICGLR’s work on sexual violence).
Summary of Findings
Sexual harassment is everywhere. More than four decades after the term “sexual harassment” was first coined to describe unwanted, hostile harassing behavior based on one’s sex, the team at the Better Life Lab analyzed an extensive collection of data and research to draw a more complete picture of the incidence and experience of sexual harassment in the workplace. They have not only focused on professional settings, which have garnered the most media and public attention, but also extended their analysis across all sectors. By dividing industries by gender ratio and wage, they also sought to understand the factors that drive sexual harassment, finding that some are common across all sectors, and others unique to a particular sector.
They found that sexual harassment in the workplace remains a severe, pervasive, and troublingly unresolved problem. Even as women comprise nearly half the workforce, sexual harassment persists in virtually every sector of the economy, from male-dominated to female-dominated industries and workplaces, and from low-wage and precarious jobs to high-wage professions.
Sexual harassment is systemic.
Sexual harassment isn’t something that just happens because of fleeting circumstance or desire. It is driven in all sectors by imbalances in power. Men hold far more positions of power in all sectors of the economy. Even in female-dominated fields, men are more likely to be supervisors, principals, and managers. In all fields, race and racism add another layer to systemic power imbalances.
Impacts of sexual harassment are felt beyond just the harassing interaction.
This analysis shows that no sector remains untouched by sexual harassment, nor unaffected by its impacts. Sexual harassment damages the lives, health, prospects, financial independence, and opportunities of its victims, and costs businesses not only legal fees, but lost productivity, morale, effectiveness, and talent. Tolerating or failing to adequately respond to sexual harassment can block women’s and other targets’ economic security, access to opportunity, and advancement, which serves to preserve the status quo and power imbalances that drive sexual harassment in the first place.
Women are the most common, but not the only, targets for sexual harassment.
There are basic patterns for sexual harassment, but those patterns do not capture the variations in experience by different groups of people and by workers in different sectors. The data shows that across all sectors, women of lower status are the most common targets of sexual harassment by perpetrators, who are typically men of higher status. But sexual harassment in the workplace is by no means limited to this dynamic. Men, particularly those who don’t conform to traditional masculine norms, and others seen as outsiders, like LGBTQ and gender nonconforming people, can be targets. Women can be harassers. People of color, especially women of color, are more likely to be subject to sexual harassment than their white counterparts.
It’s not just bosses and co-workers who are harassing.
In nearly every sector, we found that it’s not just managers, supervisors, and those in power who sexually harass targets. Harassment can come from coworkers, as is the case for some hostile work environment claims. Sexual harassment is also common from third parties. That’s true for fast-food restaurant workers in the low-wage arena, who can be harassed by customers, and for nurses, doctors, and healthcare workers who can be harassed by patients. It’s also true for highly paid lawyers, who can be sexually harassed by opposing counsel, clients, and judges.
Gaps in labor and civil rights laws create vulnerability to sexual harassment among large numbers of Americans.
A swath of workers across all sectors are not covered by current civil rights laws, and have little or no resources to report or complain about sexual harassment. This includes independent contractors, entrepreneurs, gig workers from any sector, and agricultural and domestic workers—some of whom face additional challenges in the form of precarious immigration status. Members of Congress and other legislative bodies have also exempted themselves and their staff from many civil rights laws.
Sexual harassment is often driven by narratives, myths, and norms about women, men and workers. Sexual harassment is fueled, in part, by the stories we tell ourselves and the narratives that we choose to believe. Many organizations are often driven to protect perceived high performers, superstars, creative geniuses, and rainmakers at all costs, thinking that success, innovation, or survival is dependent on that one person, regardless of their behavior. Narratives around the ideal worker and the breadwinner-homemaker ideal perpetuate a gender-harassing power dynamic rooted in the belief that women and others who don’t conform to these traditional norms don’t belong and can’t compete in the work world, and that men don’t belong in caregiving. These damaging mythologies not only drive rampant sexual harassment, but foster abusive and toxic cultures that silence, sideline, and waste the talents and potential of countless targets. Denial—thinking that sexual harassment doesn’t happen in, say, female-dominated environments, or that organizations have already fixed it—is another powerful false narrative that provides fertile ground for sexual harassment to thrive.
Harassment comes in two basic varieties: gender-based sexual harassment and sex-focused sexual harassment.
Sexual harassment comes in roughly two forms: harassment that centers on sex and desire for sexual or romantic connection, and gender harassment. Gender harassment is generally not about sexual attraction or sexuality. Gender-harassing physical, verbal, and symbolic behaviors insult and degrade one’s gender in an effort to assert power, control behavior, or force those who don’t conform out of a particular job or out of the profession entirely. Workers across industries experience these different types of sexual harassment, some of which cross the legal standard of either quid pro quo harassment, or harassment that is so severe and pervasive that it constitutes a hostile work environment that negatively impacts one’s work. But others experience harassment—usually gender harassment—that doesn’t necessarily meet the legal standard but still has a negative impact on the work life of many individuals and on workplace cultures.
The cost of leaving jobs is high for many, which can embolden harassers, keep targets silent, and normalize sexual harassment
Workers in the low-wage sector may tolerate sexual harassment because they need their jobs to survive and have few options. Male-dominated blue collar jobs pay better than jobs in female-dominated sectors and the gender pay gap between men and women is among the smallest of any sector. So targets—and bystanders—may sometimes ignore sexual harassment, or refuse to file a complaint, for fear of losing a good-paying job with the promise of a foothold in the middle class. Higher-wage professionals may also stay in toxic, sexually harassing environments because they’ve invested so much education, time, and effort into building their careers, networks, or reputations, that the risk of being labelled a pariah, or ostracized, can keep victims silent. All of which create work cultures where sexually harassing behavior can become normalized.
Most reporting systems don’t work.
We found problems in every sector in the way organizations respond to sexual harassment complaints. In many settings, the system is often set up to fail, with victims required to report claims of sexual harassment through a strict chain of command that often includes perpetrators or their allies. This effectively silences victims or freezes complaints. This has been a particular problem in the military, though efforts have been made to allow confidential reports to be made outside the chain of command. But that only ensures a stopgap measure of enabling the victim to receive support, not that the perpetrator will be counseled or punished or the culture that tolerates harassment will be changed. In the tech sector, some male-dominated start-ups move so quickly that human resources and sexual harassment policies are an afterthought, at best. In low-wage settings in particular, policies and reporting systems are often murky. And many workers, because of the type of job they have (agricultural work) or legal status (undocumented), have no access to reporting at all.
Solutions must be targeted and aimed at changing culture, systems and structures.
We found that organizations typically have three primary responses to combat sexual harassment:
- Ignoring complaints or harassment,
- Firing a harasser, and/or
- Offering sexual harassment training.
These approaches aren’t working. Firing a harasser may solve a specific problem in the short term. Offering a canned, digital sexual harassment training, as is the norm, may protect an organization from legal liability, but does little to change its culture.
Ignoring complaints and failing to recognize sexual harassment creates toxic cultures that normalize harassment.
None of these strategies are enough to respond to, prevent and end sexual harassment. So what works?
As a companion to this report, the Better Life Lab has produced a #NowWhat toolkit with examples, strategies, and evidence for promising solutions in combating sexual harassment—from top-down, system-level responses to granular, individual actions.
RECOMMENDATIONS
How to Combat Sexual Harassment in the Workplace
Demonstrators hold hands outside the California State Capitol in Sacramento in support of a measure aimed to protect women custodial workers, May 31, 2016.
The most recent revelations about sexual harassment perpetrated by Harvey Weinstein, the prominent movie producer, are the latest in a seemingly endless string of blockbuster stories about high-profile figures and allegations of sexual harassment, pay-offs, and cover-ups. With each story, there are sordid, troubling accounts from victims—many of whom were ignored or dismissed at the time the incident occurred—followed by outrage and disbelief from co-workers, professional colleagues, and the media.
But, the reality is that the prevalence of sexual harassment should no longer be surprising. Sexual harassment—such as unwanted sexual advances and other actions of a sexual nature used as a condition of employment, to interfere with an individual’s work, or to create a hostile or intimidating work environment—has been an unfortunate part of the workplace for years. Most cases occur out of sight or behind closed doors; most victims are not famous and never have their stories told.
This year marks 40 years since the 1977 decision in Barnes v. Costle, a less well-known but important ruling that helped lay the groundwork for protections against sexual harassment in the workplace.
The case involved an African American woman, Paulette Barnes, whose job was ultimately abolished after she rebuffed her supervisor’s repeated sexual advances. After the lower court dismissed her case, arguing that her supervisor’s requests for sex did not violate the law, a federal appellate court found for the first time that sexual harassment constituted illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964. In the years that followed, other cases would tackle similar questions. In 1986, the U.S. Supreme Court ruled in the landmark case Meritor Savings Bank v. Vinson that sexual harassment creating a hostile environment violated Title VII’s protections against sex discrimination.
Changing the law and changing workplace culture, however, are two different things. Today, decades after sexual harassment was declared illegal by the courts, it remains a stubborn presence in the workplace. A review of charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) reveals that in fiscal year 2016, nearly one-third of the 91,503 charges filed involved some allegation of harassment. These charges included not only charges alleging sexual harassment but also charges involving other forms of harassment, such as those based on race, age, disability, and national origin. Of these harassment charges, slightly more than 45 percent—12,860 charges—involved allegations of sex-based harassment. This includes harassment involving sexual advances or sexual coercion, as well as harassment based on an individual’s sex, such as using demeaning or degrading comments about women. The continued prevalence of harassment claims prompted the creation of an EEOC task force in January 2015 to undertake an 18-month, in-depth look at all forms of harassment in the workplace. The task force issued a comprehensive report in June 2016 and identified a range of measures—from greater organizational leadership to stronger anti-harassment policies, comprehensive training, and peer-to-peer interventions—that employers, employees, government, and researchers can take to combat harassment and improve workplaces overall. It also noted the need for more research on the prevalence of sexual harassment, including less-researched areas such as harassment based on sexual orientation and gender identity.
Yet, sexual harassment persists and, to achieve change, it is important to closely examine what is holding progress back.
First, sexual harassment by definition invokes discussion about sex and intimacy, which are two issues that many people may be uncomfortable discussing in public. Few people want their motives or actions second-guessed or scrutinized for fear of being blamed, thus many victims choose to stay silent. Victims often are unwilling to come forward because they are concerned that their complaints will not be believed or that they will face retaliation. The EEOC task force report noted that sexual harassment was significantly underreported, pointing to research estimating that 70 percent of workers who experienced sex-based harassment never formally reported it.
Second, sexual harassment—as is the case with other forms of harassment—is often about power and taking advantage of a power imbalance. The sexual threats used to carry out harassment are the tools used to exert power over victims to make them feel weak and remind them of their lack of power within the workplace. This misuse of power can be especially challenging for women of color who may be targeted because of a combination of biases related to their gender and race or ethnicity. Research has also shown that even women who occupy positions of authority are targets of harassment to diminish or undermine their power within their organization. Third, sexual harassment requires a fundamental change in workplace culture, which simply does not happen overnight. Establishing new standards and expectations of appropriate conduct to achieve systemic change can threaten the status quo and provoke resistance to change. Finally, underlying attitudes and stereotypes about women, men, and their proper roles that are firmly ingrained in workplaces and individuals themselves influence sexual harassment. Such attitudes can infect workplaces and fuel harassment, and collectively, perpetuate a workplace climate where sexual harassment continues to thrive.
There are steps that can be taken by the government of East Africa Community, employers, and employees to combat these problems and accomplish meaningful change. But, it requires intentional, consistent, and comprehensive efforts to target illegal conduct, change workplace culture, and establish a new normal.
- Show leadership through zero-tolerance
Eliminating any form of harassment must begin with leadership from the very top of an organization to make clear that such conduct is neither tolerated nor acceptable. This means more than lip service; it means backing words with clear measures of accountability and transparency about process. When President Donald Trump quickly defended former Fox News personality Bill O’Reilly against multiple accusations of sexual harassment by questioning the veracity of his accusers without any facts, he sent a message that women’s complaints should be viewed with suspicion or not believed. When he dismisses his own previous crude remarks as simply “locker room talk,” he makes clear his tolerance for a workplace where disparaging words are dismissed as harmless or inconsequential. All of this can be counterproductive to remedying discrimination and can create a climate that discourages reporting of illegal behavior. Moreover, selectively choosing whom to believe based on political or personal preferences casts the issue as partisan, when there should be a collective interest in creating workplaces free of harassment. Whether it is the president of the United States or the manager at a local fast-food establishment, leadership is key to setting a harassment-free tone for the workplace.
- Establish equality as a core principle
A commitment to equality should be a foundational principle for every workplace to firmly establish that everyone deserves equal treatment and an equal chance to succeed. Sexual harassment undermines this core principle by interfering with an individual’s employment for reasons other than their ability to do a particular job. Furthermore, sexual harassment is often used to isolate women or men and treat them as outsiders or objects without any role or power within a workplace. It is essential for all participants in the workplace, whether employers, employees, or enforcement officials, to affirm equality as a guiding principle that governs how each workplace operates.
- Modernize workplace standards to respond to workers’ diverse experiences and challenges
Prioritizing policies to help create modern workplaces that envision women’s participation as the norm and not the exception is crucial. This means understanding the different challenges women face based on their race, ethnicity, sexual orientation, and economic status, in order to understand unique intersections, identify responsive policies, and maximize their full participation in the workforce. This approach also recognizes sexual harassment as a structural barrier within the workplace that requires workplace-based solutions—rather than personal problems without a remedy. Clearly communicated anti-harassment policies and comprehensive and consistent training, particularly for managers and supervisors, are essential to change the culture of the workplace. Educating staff about different forms of bias and strategies to combat it; measuring performance by how well staff address these issues; and creating reporting mechanisms that allow workers to raise concerns without fear of retaliation are among the different strategies that can help improve workplace climate.
- Vigorously enforce the law at all levels
Enforcement agencies charged with investigating and resolving sexual harassment complaints must have the necessary infrastructure and resources at their disposal to do their job, such as a full complement of staff to investigate cases, access and analyze data, and seek resolutions to ensure compliance with the law. For example, the Trump administration’s proposed FY 2018 budget proposes to consolidate key civil rights enforcement functions without new funding or staffing, which could impair agencies’ ability to fully investigate claims. It is also critical that charges are taken seriously—from the time that a claim is reported, throughout the span of an investigation, and into the courtroom. This work could include, for example, training to ensure greater sensitivity when dealing with potential victims. It also means pushing for greater diversity among staff and officials throughout the legal process, and ensuring that the individuals selected to administer the law—whether federal enforcement officials, prosecutors, or judges—are committed to fairness, impartiality, and thorough investigations. For instance, research analyzing a data set of federal appellate sexual harassment and sex discrimination cases found that the presence of a female judge significantly increased the probability of success for sexual harassment plaintiffs, yet the number of female judicial appointments by President Trump remains low when compared with previous Republican and Democratic administrations. This lack of diversity could have a serious, negative impact of the ability of victims to vindicate their rights.
- Work collectively to combat bias and stereotypes
At the center of sexual harassment are biases, stereotypes, and perceptions about women in the workplace. It is critical to confront these barriers head-on and not shy away from taking strong, deliberate steps to root out such perceptions and minimize their impact. Assumptions about women based on what they wear or that certain women are more sexually provocative because of racial or ethnic stereotypes have no place in the workplace and should not be explained away as harmless banter. Establishing clear, unwavering expectations about workplace dialogue and creating an environment of mutual respect must be a deliberate part of any effort to address sexual harassment at work.
- Empower workers
Individuals who experience sexual harassment must have an ability to fight back, with the support of robust processes within the workplace that have teeth and result in meaningful consequences when misconduct occurs. Many cases involving sexual harassment never make their way to an enforcement agency or court but are handled in the workplace, if at all. This means that workers must be able to invoke policies and internal complaint mechanisms that take claims seriously and ensure they are investigated without retribution, retaliation, or derailing workers’ careers. These actions, taken together, could begin to change workplace dynamics and the conditions that make sexual harassment possible.
Conclusion
No one actor can single-handedly eliminate sexual harassment. It will require an ongoing commitment, persistence, and a willingness to pursue change at many different levels. There are steps the great lakes region can take to contribute to a better workplace climate for all workers. The East Africa Community should lead by example: It should move swiftly to reject the anti-woman narrative that has infected many of its policy proposals, and it should increase rather than diminish support for vigorous civil rights enforcement. Employers should ensure that they have strong anti-harassment policies in place that are shared widely throughout their organizations, and that they foster safe working environments consistent with the law. Employees should know their rights, as well as make use of the processes available to them to raise concerns when problems arise. Ridding the workplace of sexual harassment will take time—but it is possible, if we take action now.
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How to Combat Sexual Harassment in the Workplace
By Jocelyn Frye October 19, 2017, 9:02 am
AP/Rich Pedroncelli
The Writer is a Senior Human Rights Defender and a Master’s of Laws (LL.M) Student at the University of Juba. He can be reached via Email Address: gabrielkuot28@gmail.com or WhatsApp Number: +211912143263.
