1 December 2017

Sexual Harassment in the Workplace

In recent weeks, large numbers of accusations of sexual harassment and abuse have been levelled against high-profile actors, directors, musicians, and sports stars. The accused individuals have been condemned for using their positions of power and influence within their respective industries to attack, coerce, manipulate, and sexually harass vulnerable co-workers.

The scandals which have emerged in response to these alleged actions have sparked public discussion about sexual harassment and misconduct, both in the workplace and in society. In response to the increasing public debate surrounding this issue, the ‘Me Too’ viral web campaign emerged, in which thousands of women, from varying employment, social, and economic backgrounds, shared their own personal experiences of sexual harassment and assault through the medium of social media.

The stories shared by the women of the ‘Me Too’ campaign highlight the fact that sexual harassment is not unique to the film, sports, and media industries. It pervades every industry, including all professional disciplines, such as business, politics, academia, and law. Sexual harassment can potentially occur in any workplace, and its consequences can be catastrophic for Irish employers, and torturous for their affected employees. It is therefore important for all employees to be aware of what constitutes sexual harassment and what actions can be taken in response to it.

The Employment Equality Acts 1998-2015 define sexual harassment as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which… has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

The scope of “unwanted conduct” is broad, and includes spoken words, gestures, or the production and display of written words, pictures and other material. This includes offensive bodily gestures or facial expressions, e-mails, unwelcome and offensive paintings or calendars, or any other offensive material.

Additionally, this unwanted conduct need not be routine to constitute sexual harassment, as even one single unwanted act will violate the provisions of the Acts.

Furthermore, it is irrelevant if the behaviour was not intended to be a form of sexual harassment. Whether the conduct was unwanted is a subjective test, and the victim need only show that it made them feel as though their dignity was violated and that it created an intimidating, hostile, degrading, humiliating or offensive work environment for them.

The unwanted conduct can be carried out by an employer, a co-worker, a manager, a customer, a client, or any other work-related contact.

Importantly, sexual harassment can occur both in the workplace and outside of it. Outside of the workplace, sexual harassment can occur on work-related trips, training courses, work social events, or any other occasion which is connected to the victim of sexual harassment’s job.

The Employment Equality Acts state that “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.” As a result, a victim of sexual harassment in the workplace may take legal action against the harasser, their employer, or both.

However, the Acts provide employers with a defence to these claims if they can show that they took all reasonably practicable steps to prevent the harassment and to reverse the effects of it.

In order to prevent sexual harassment from occurring in their workplaces and to defend against claims, it is important for employers to implement meaningful policies and procedures regarding sexual harassment. These policies should clearly outline what constitutes sexual harassment and all employees should be made aware of unacceptable work behaviours. Furthermore, employers should implement an effective and meaningful grievance procedure to deal with and follow up on employees’ complaints of sexual harassment. The Code of Practice on Sexual Harassment and Harassment at Work is a useful guide for employers in regard to preventing sexual harassment at work and implementing procedures and policies to deal with instances where it occurs.

Regardless of the outcome, if an individual brings a sexual harassment claim against their employer under the Employment Equality Acts, they cannot be consequently treated less favourably by their employer. Following the taking of legal action, if an employer treats the claimant unfavourably in the workplace then the claimant can take further action against their employer on the grounds that they are being victimised at work.

Moran and Ryan have a proven track record in representing the victims of sexual harassment. If you feel that you have been subjected to sexual harassment in the workplace, do not hesitate to contact our office to schedule a consultation.