The Jeff Cumberbatch Column – Sexual Harassment: The Myth and the Reality
As the public discourse on sexual harassment, in light of the ongoing Parliamentary debate on the Employment Sexual Harassment (Prevention) Bill, assumes pride of place locally and in the US, where the contemporary revelations of the seemingly unending past misdeeds of Mr. Harvey Weinstein proliferate on the news media, there appears to be much in this discussion that betrays a popular misperception of the nature of the “beast” with which the proposed legislation seeks to contend. This exists mainly in the form of myth, caused in part by the assumption that everyone knows precisely what is sexual harassment because he or she has heard the concept mentioned somewhere, in much the same way that some Barbadians are wont to refer to an individual as his or her “friend”, simply because they have seen that individual’s photograph at one time or another in a newspaper.
In this week’s essay, I propose to examine some of the mythology (old men’s tales) surrounding sexual harassment in light of the provisions of the Bill in its present form.
That sexual harassment needs to be continuous to be remediable
Continuity is not an indispensable aspect of sexual harassment. Even though the word “harassment” does connote a serial pattern of behaviour, there may be a single act so egregious that non-consent to it by the victim may be presumed. Obeying President Trump’s advice for dealing with married women by grabbing [or as local parlance would have it, “grabbling”] them by their pudenda would constitute an act of sexual harassment even in the absence of its repetition, since it may be assumed that such conduct would not ordinarily be consented to. Indeed, the Bill recognizes this where it provides in Clause 3(2), after listing in sub-clause (1) acts that are included in the definition of sexual harassment, among them, “the initiation of unwanted physical contact with a person”, that “nothing in…(1) shall be interpreted as precluding a finding of sexual harassment where there is a single incident…” Of course, in circumstances where an act is not immediately unacceptable on its face, a repetition will constitute sexual harassment only if it has been made clear by the recipient that such an overture is unwelcome.
That there is an element of contributory fault in sexual harassment
The fact that a female may be scantily clad or is wearing revealing clothing does not afford justification for the actions of the harasser. There is no provision in the Bill for the inappropriateness or existence of the harassment to be reduced if it is argued that the victim induced it by her manner of dress or by the display of her physical assets.
That sexual harassment needs to be directed to the victim
In fact and in law, sexual harassment may be present by the creation of an objectively hostile environment that is not directed to the complainant solely. According to clause 3 (1)(a), [For the purposes of this Act, sexual harassment includes] the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person…
Given that “a person” is used here in a generic sense in that sub-clause, it should suffice that someone is alarmed or annoyed by the alleged conduct, whether it was aimed at that individual or not. Moreover, sub-clause (e) which lists “transmitting sexually offensive writing or material of any kind” appears to be of a similar general nature as well, although this, to my mind, would appear to be too broadly drafted in its present form and would capture the transmission of material between two consenting parties that is stumbled upon by an unsuspecting individual. Any redraft should indicate clearly that this sub-clause relates solely to the uninvited transmission of such material to an individual.
Too besides, in this connection, it may also be considered sexual harassment where an employer grants employment benefits to an employee as a result of that employee’s agreement to grant sexual favours to the employer, to a client or to his or her supervisor to the disbenefit of an employee who did not likewise agree. The aggrieved employee would have been sexually harassed here, even though the Bill does not seem to require the benefit granted and denied be the identical one in each case.
That sexual harassment is gender-neutral
In keeping with the modern trend, the Bill, as drafted, is gender-neutral, a fact that surprisingly has drawn no negative comment from those quarters that protested a similar treatment for the recent amendment to the Domestic Violence Act. Of course, it is eminently possible that sexual harassment may occur between those of the same gender but the larger truth, according to the Journal of the American Psychological Association, is that “99% of sexual harassment victims are female”. To equate the two forms conceptually is thus to close one’s eyes to the reality and to confound the possible with the distinctly probable.
That sexual harassment occurs mainly in the workplace
Given its nature, sexual harassment may occur in any context where one party perceives the opportunity to trade a benefit desired by another for sexual favours. Barbados has chosen for now to restrict its prevention efforts to the workplace environment, unlike Belize which, in its Protection against Sexual Harassment Act 1996, also restricts sexual harassment in educational and other institutions that are workplaces in part, but are also environments where encounters between genders of different levels of influence proliferate and are thus ripe with the probability of quid pro quo harassment. Further, there is also restriction in the Belize Act in the context of the rental of accommodation. According to one local parliamentarian, it is expected that the current Bill, when proclaimed into law, will conduce to a culture of anti-sexual harassment conduct everywhere in Barbados.
That the legislation will preclude social intercourse between males and females in the workplace
This is most assuredly not a necessary consequence of the legislation. Normal workplace relations may still subsist; it is simply that these should be attended with a modicum of respect for the individual and for their sensibilities. Ordinary by-play between male and female workers may continue without either being overly obnoxious or crude. In any event, a compliment on another individual’s appearance or even an expression of one’s secret desire towards him or her does by itself not constitute sexual harassment unless it is either knowingly unwelcome or, as stated earlier, so crude as to be presumed repugnant to any given individual.
That the legislation will create additional imposition on the employer
This is to catch at straws. Even in the absence of legislation, the employer has an obligation to take reasonable steps to ensure a safe system of working for the individual employee. This would include, on the part of the employer, the ensuring of an environment free of sexual harassment and of its condign censure once established. As has been stated, “If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or to prevent such acts, when it is his power to do so, it is clearly arguable that he may be in breach of his duty to that employee…” The sole new imposition on the employer will be to devise the policy statement stipulated under Clause 4 of the Bill and assistance is provided in that regard by the Bill itself.