It takes one quick Google search of ‘sexual harassment’ to bring up numerous articles relating to the recent exposé of Harvey Weinstein and now allegations against Amazon Studios’ Roy Price for sexual harassment.
The Weinstein scandal in particular has ignited a debate about sexual harassment and discrimination in the workplace. Many perhaps naively thought it was a rare occurrence. However, the latest figures available (in a collaborative report by the TUC and Everyday Sexism published in August 2016) disprove this assumption. It reported that:
- 52% of women had experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes
- 1 in 8 women reported behaviour legally considered as sexual assault, including unwanted sexual touching of breasts, buttocks or genitals or attempts to kiss them at work
- 20% of women had been harassed by their boss or someone else with authority over them
Whilst it is very clear the above behaviours constitute sexual harassment, there are more subtle ways an employee can be both sexually discriminated against or sexually harassed. Sex is one of nine protected characteristics covered by the Equality Act 2010, which makes it unlawful for an employer to discriminate against or harass an employee because of their sex.
What are the differences between sexual discrimination and sexual harassment?
Sexual discrimination can occur either directly or indirectly.
Direct sexual discrimination is when an employee is treated ‘less favourably’ because of their:
- Sex (‘ordinary’ direct discrimination)
- Association with someone of a particular sex (direct discrimination by association)
Indirect discrimination occurs when an employer’s rule or procedure is applied to all employees, but disadvantages those of a particular sex. It is important to note that in certain circumstances, indirect discrimination can be justified if it’s necessary for the business to work.
Sexual harassment occurs when there is:
- Unwanted conduct related to a person’s sex causing a distressing, humiliating or offensive environment for them
- Unwanted conduct of a sexual nature
- Less favourable treatment of an employee because they have rejected sexual harassment or been the victim of it
Employers should take any allegation of sexual discrimination or sexual harassment seriously as if an employee sexually discriminates against or harasses another employee, the employer may in some circumstances be vicariously liable for the employees act.
Claims for discrimination and harassment must be raised within three months less one day of the unwanted conduct. It is a pre-requisite of Employment Tribunal proceedings that an ACAS Early Conciliation application is lodged.
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