Harassment, sexual harassment, and the Employment Equality (Sex Discrimination) Regulations 2005

Industrial Law Journal

Volumn 35, Issue 2, 2006, Pages 161-178

  Clarke, Linda ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 33745437745     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwl012     Document Type: Article

References (101)

1. Waters v Commissioner of Police of the Metropolis [2000] IRLR 720
2. Brenda Barrett, 'Harassment at Work: A Matter of Health and Safety' [2000] Journal of Business Law 214-31.
3. [2005] EWCA Civ 251 The case is going to the House of Lords in 2006.
4. Nicola Lacey, 'From Individual to Group: A Feminist Analysis of the Limits of Anti-Discrimination Legislation' in Unspeakabe Subjects (Oxford: Hart, 1998).
5. Glasgow City Council v Zafir [1998] IRLR 36 HL
6. Bahl v the Law Society [2004] IRLR 799.
7. Twaddle JA, Janzen et al v Platy Enterprises Ltd (1986) 7 CHRR D/3309 at D/3845.
8. See Sarah Hannett, 'Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination', (2003) 23 Oxford Journal of Legal Studies 65-86.
9. Age discrimination legislation, which will prohibit harassment on grounds of age, is to be introduced in the UK in October 2006. See DTI, 'Equality and Diversity: Coming of Age', July 2005.
10. SI 2005/2467.
11. See Lin Farley, Sexual Shakedown: The Sexual Harassment of Women on the Job (New York: McGraw Hill, 1978).
12. Catherine MacKinnon, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979) p 174.
13. Above, n 10, Appendix B: A Brief, p 235.
14. She contrasts this with the 'Inequality Approach', which 'implicitly conceives of the social situation of the sexes as unequal, rather than merely - or even basically - different', above, n 10 at 102.
15. Ibid at 192.
16. See Barnes v Costle 561 F.2d983. Even here, the courts acknowledge a 'bisexuality gap': A bisexual supervisor, insisting on sexual favours from both men and women, would not discriminate on grounds of sex.
17. See further Martin J. Katz, 'Reconsidering Attraction in Sexual Harassment' (2004) 79 Indiana Law Review 101
18. Kenji Yoshino, 'The Epistemic Contract of Bisexual Erasure' (2000) 52 Stanford Law Review 353.
19. [1986] ICR 564.
20. The two male lab assistant in Porcelli were the new employees, replacing two female lab technicians. Ms Porcelli also claimed that she was subjected to discriminatory treatment by Miss Caldwell, the female teacher in charge of the chemistry department.
21. At p 570-1, per Lord President (Lord Emslie).
22. At p 574.
23. See Insitu Cleaning Ltd v Heads [1995] IRLR 4
24. Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299
25. Driskel v Peninsula Business Services Ltd [2000] IRLR 151.
26. [1996] ICR 535.
27. At 541. In contrast, in Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9 the EAT was prepared to hold that men downloading pornographic images in an office where a woman was also working could amount to less favourable treatment, and was sufficient to shift the burden of proof to the defendant (who was not represented).
28. [2005] IRLR 4.
29. [2003] IRLR 512.
30. Unless we have a 'bisexual supervisor'.
31. [1997] IRLR 516.
32. SI 2005/2467.
33. [2002] OJ L269/15.
34. [1976] OJ L39/40.
35. The harassment suffered by Ms Pearce would now also be covered by the Employment Equality (Sexual Orientation) Regulations 2003, (SI 2003/ 1661).
36. 2000/43/EC, [2000] OJ L180/22.
37. 2000/78/EC, [2000] OJ L303/16.
38. Women and Equality Unit, DTI, Equality and Diversity: Updating the Sex Discrimination Act 1975, March 2005.
39. At para 28.
40. Michael Rubenstein, 'Amending the Sex Discrimination Act', April 2005, No 140 Equal Opportunities Review, p 21.
41. EOC, May 2005, Response to Department of Trade and Industry, Equality and Diversity: Updating the Sex Discrimination Act.
42. Disability Rights Commission, Code of Practice on Employment and Occupation, para 4, 29.
43. See also Claydon House Ltd v Hamilton-Bradbury UKEAT/ 0315/04.
44. TUC response to government consultation on implementation of EU Equal Treatment Amendment Directive, May 2005, para 8. In contrast, the CBI's response did not explicitly refer to the difference in wording between the Directive and the draft Regulations, noting rather obliquely that '[P]ress stories surrounding the removal of the so-called "bastard's defence"... may have given the public impression that the law surrounding harassment is undergoing radical change'. CBI Response, para 10.
45. '... the national court called on to interpret [domestic legislation] was required to do so as far as possible in the light of the wording and purpose of the Directive in order to achieve the result sought by the Directive', ECJ, Marleasing SA v La Commercial Internacional de Alimentacion Case C-106/89, [1990] ECR I-4135.
46. Igen Ltd v Wong [2005] EWCA 142, CA, Guideline 11.
47. Above, n 39 at para 51.
48. Above, n 39, Guideline 11.
49. Unlike harassment on grounds of sex, and the other prohibited forms of harassment introduced as a result of the Racial Equality Directive and the Framework Employment Directive, which simply refer to 'unwanted conduct', conduct here is further described as 'verbal, non-verbal or physical'. The reason for the difference appears to be that this provision was inserted by the European Parliament, rather than the Commission, but it has been suggested that the difference in wording, particularly in gender discrimination, where the two provisions stand side by side, could be used to further restrict harassment 'on grounds of sex' to proactive, rather than passive, conduct. See Miriam Dreissen-Reilly and Bart Driessen, 'Don't Shoot the Messenger: A Look at Community Law Relating to Harassment in the Workplace' [2003] 28 European Law Review 493-507 at 497.
50. Directive 2002/73/EC Article 2(2). [2002] OJ L269/15.
51. See Vicki Schulz, 'Reconceptualizing Sexual Harassment' (1998) 107 Yale Law Journal 1683 at 1744-8 for an account of the difficulties US courts have had in determining what counts as sufficiently 'sexual'.
52. Women and Equality Unit, Consultation Paper- Equality and Diversity: Updating the SDA, para 32.
53. By contrast, in the European Commission's Guide to Implementing the European Commission Code of Practice- How to Combat Sexual Harassment at Work Michael Rubenstein and Ineke De Vries set out some illustrations of what was meant by sexual conduct.
54. ACAS, 'Bullying and Harassment at Work: A Guide for Managers and Employers', (2005).
55. With the exception of the bizarre example of a newspaper editor insisting that a female work placement student accompanies a photographer to a local strip club. As Michael Rubenstein notes, 'the only sexual conduct here is by those at the strip club. There is no conduct of a sexual nature... by the newspaper editor'. Michael Rubenstein, 'SDA Changes Explained', August 2005, No 144, Equal Opportunities Review, p 26.
56. Stewart v Cleveland Guest (Engineering) Ltd [1996] ICR 535.
57. The EAT held in Riley v Nick Base (T/A GL1 Heating) (UKEAT 0092/05) that the phrase 'fucking wanker' is commonly applied to both men and women in employment, and thus not sex discriminatory. This would presumably now be 'sexual' abuse.
58. It is perfectly possible that such conduct would be interpreted by some women as violating their dignity, or creating a degrading environment. Much would depend upon the tribunal's view of whether such an interpretation is 'reasonable'.
59. Vicki Schultz, 'Reconceptualizing Sexual Harassment' (1998) 107 Yale Law Journal 1683 '
60. 'The Sanitized Workplace' (2003) 112 Yale Law Journal 2001.
61. Schultz, 'Reconceptualizing Sexual Harassment', above n 52.
62. Schultz, 'The Sanitized Workplace', above n 52 at p 2065.
63. This is a common theme in press reporting of the new law, eg 'War on Office Party Sex Predators', Observer, Sunday, 25 September 2005.
64. Kingsley Browne, 'The Silenced Workplace' in MacKinnon and Siegal, Directions in Sexual Harassment Law (New Haven: Yale, 2004) at p 399,
65. Volokh, 'How Harassment Law Restricts Free Speech', (1995) 47 Rutgers Law Review 563.
66. Hepple, 'Freedom of Expression and the Problem of Harassment' in Beatson and Cripps (eds), Freedom of Expression and Freedom of Information (Oxford: OUP, 2000).
67. See Pay v Lancashire Probation Service [2004] IRLR 129.
68. This has been a particular issue in the United States, where the vast majority of employees work under so-called 'fire at will' contracts, with no legal protection against an unfair or unreasonable dismissal.
69. See Schultz, 'The Sexualised Workplace', above n 52 at pp 2103-20.
70. See Dunnachie v Kingston upon Hull CC [2004] HL 727
71. See Scott v Commissioners of Inland Revenue [2004] EWCA 400.
72. See Schultz, 'The Sanitized Workplace', above n 52 at pp 2119-31
73. Gary M. Kramer, 'Limited License to Fish off the Company Pier: Towards Express Employer Policies on Supervisor- Subordinate Fraternization', (2000) 22 Western New England Law Review 77.
74. See eg the report by Peninsula and Portfolio Payroll, 'UK offices simmering with passion', reported at www.management-isssues.com, 11 February, 2004
75. Fox Williams, 'Love Hurts', www.foxwillams.com/news/article
76. Sarah Whitemore, 'Employee Relationships: It's a Workplace Affair', (2004) 54 Employment Law Journal 22-4
77. Lucy Hickman, 'Office Relationships' (2004) 101 L.S. Gaz (6), p 26
78. Julian Yew and Caroline Ruoff, 'The Perils of Office Romance' (2004) 154 NLJ 7148.
79. Schultz, 'The Sanitized Workplace', above n 52 at 2134.
80. Beth A. Quinn, 'The Paradox of Complaining: Law, Humor and Harassment in the Everyday Work World' (2000), 25 Law and Social Inquiry 1151 at 1176.
81. Schultz, 'The Sanitized Workplace', above, n 52 at p 2135.
82. Jean L.Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton, NJ: Princeton University Press, 2002) p 136.
83. Susanne Baer, 'Dignity or Equality? Responses to Workplace Harassment in European, German, and US Law' in MacKinnon and Siegal, Directions in Sexual Harassment Law (New Haven: Yale, 2004) at p 592.
84. Cohen, above n 68 at 137.
85. Equality: A New Framework: Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart, 2000).
86. See also the proposals of Janet Dine and Bob Watt,'Sexual Harassment: Moving Away from Discrimination' (1995) 58 Modern Law Review 343
87. Joanne Conaghan, 'Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment' (1996) 16 Oxford Journal of Legal Studies 407-31.
88. Article 1 of the Charter of Fundamental Rights of the European Union states that 'Human dignity is inviolable. It must be respected and protected' (Official Journal C-364/9, 18.12.2000)
89. Commission Recommendation on the Protection of the Dignity of Men and Women at Work, 92/131/EEC, 27 November 1991: Collins, 'European Union Sexual Harassment Policy' in Elman, 'Sexual Politics and the European Union (Berghan Books, 1996).
90. Sandra Fredman, 'The Future of Equality in Britain', Working Paper Series No 5, EOC, 2002, at para 2.3.
91. Though racial comments have also been treated as playful banter: See Thomas v Robinson [2003] IRLR 7.
92. An EOC analysis of 54 tribunal decisions between 1998 and 2001 found that nearly half of people harassed had not made a formal complaint until they had left their jobs. See also Cairns, '"Femininity" and Women's Silence in Response to Sexual Harassment and Coercion' in Thomas and Kitzinger (eds), Sexual Harassment: Contemporary Feminist Perspectives (Oxford: OUP, 1997)
93. Beth A. Quinn, 'The Paradox of Complaining: Law, Humor and Harassment in the Everyday Work World' (2000) 25 Law and Social Inquiry 1151.
94. SI 2004/752.
95. Although there is an exception to this, where either party has suffered harassment, this is very narrowly drawn.
96. See eg Noskiw v Royal Mail Group, 7 March 2005, reported in (2005) 141 EOR, p 28.
97. See the EOC's response pp 15-16, n 35, above.
98. See Monti, 'A Reasonable Woman Standard in Sexual Harassment Litigation' (1999) 19 Legal Studies 552
99. Samuels, 'A Defining Moment: A Feminist Perspective on the Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Directive' (2004) 12 Feminist Legal Studies 181-211.
100. See Anita Bernstein, '[a]n examination of the hidden normative premises of the reasonable woman standard might reveal this profile: White, heterosexual, upper- income, something of a moderate or liberal feminist, untroubled by intense religious feeling, and a little prissier than the reasonable person in reacting to office shenanigans', in 'Treating Sexual Harassment With Respect', (1997) 111 Harvard Law Review 445 at 473.
101. Kathryn Abrams, 'The Reasonable Woman: Sense and Sensibility in Sexual Harassment Law' (1995) Winter, Dissent, 48-54 at p 52.