Sexual harassment in the workplace: What are the legal facts

We can make a car drive itself. Why can’t we sort out sexual harassment?

This is the question that Google CFO, Ruth Porat, put to the audience at a Wall Street Journal tech conference in California on Monday; the question that left the audience stumped and tech leaders rethinking their priorities.

“Why can’t we solve this? We should do better. And, if we’re holding ourselves to a view that if you can change one thing, then you should be able to change more than that,” said Porat, who went on to reveal how she and her finance team joined the global Google walkout protest against the firm’s handling of sexual harassment, gender inequality and systemic racism earlier in the month.

The protest involved over 20,000 Google employees from around the world, each demonstrating in their respective locations by walking out in response to a recent New York Times article, that revealed senior male Google executives had been paid off after accusations of sexual misconduct. The protesters listed five demands, which included ending forced arbitrations and securing a commitment to equal pay.

Unfortunately, Google is just one of many of employers that is guilty of fostering an oppressive culture. Sexual harassment in the workplace is rife, and while a global demonstration might be enough to inspire change at a tech giant like Google, a member of staff walking out of a small business is may not have the same effect.

Still, knowing the legal facts about what constitutes sexual harassment and what action can be taken is critical in raising awareness and creating a safe working environment for all members of staff:

1.   Sexual harassment is not restricted to one gender

The number of sexual harassment cases in which women are the victims may be greater than the figure for male sexual harassment, but that by no means is indicative of the law. In fact, sexual harassers can be of any gender, as can their victims.

2.   It does not have to come from a direct supervisor to be classed as harassment

Unfortunately, sexual harassment from a supervisor is still a common occurrence in the modern workplace and many victims fail to speak up about unacceptable behaviour from a manager, owner or CEO of their company for fear it will bring about the termination of their contract. In “quid pro quo” cases, supervisors offer their staff professional opportunities such as a pay rise or promotion in return for sexual favours. However, as disturbing as this may be, it is not the only form of sexual harassment. In fact, unwanted behaviour of this nature can occur between two employees or even when a member of staff harasses their supervisor.

3.   Anyone who is affected by the behaviour is a victim of sexual harassment, whether direct or indirect

You may not have been the direct victim of sexual harassment, but that doesn’t mean you can’t be emotionally affected by the behaviour you have witnessed. When someone is taken advantage of in the workplace, it’s not unusual for co-workers to feel involved, even when they are not at the centre of the situation. Whether you are a friend, employee or associate of the harasser or the victim, reporting the behaviour to a HR manager, line manager, trade union or even the police is highly encouraged.

4.   Sexual harassment can occur without economic injury or loss of benefits

Often is the case that workers fail to report sexual harassment until the victim is losing out on benefits due to their unwillingness to take part in sexual acts. However, you need not be marginalised by a member of staff or supervisor following sexual harassment for a legal case to be made against the attacker. In fact, you can be a victim of sexual harassment even if the act was not physical: verbal abuse, making sexual gestures, buying gifts or repeatedly being pressured into going out with someone are all forms of unwanted sexual contact.

5.   The harasser’s conduct must be unwelcome

The key to determining whether or not an act classes as sexual harassment is whether the contact was unwelcome. Unwelcome sexual advances do not have to be physical in nature – they can come in the form of inappropriate jokes suggestions or comments in the workplace; it can begin a request for a date or uncomfortable text messages.

So long as the conduct is considered as unwelcome by the victim, it can be classed as a form of sexual harassment. Of course, it is all dependent on circumstances, and cases such as these are often hard to judge – especially when a member of staff has felt coerced into responding positively to the behaviour out of fear or pressure. This is known as Subtle Sexual Harassment, whereby unwelcome behaviour of a sexual nature such as innuendos and advances could create a Quid Pro Quo or hostile work environment for the victim if allowed to continue.

Any worker who feels they have been sexually harassed or affected by unwelcome sexual contact can and should make a complaint to a member of Human Resources, a named ‘fair treatment contact’ or a local trade union representative.