#MeToo and the Law: Harassment at Work

Men are scared of women now. Well, according to the New York Times in a May 2019 article reporting on the results from a recent LeanIn.org and SurveyMonkey’s new #MentorHer poll, which revealed that 60% of male managers report feeling “too nervous” about being accused of harassment to interact with women in “common workplace” activities such as mentoring, socializing and one-on-one meetings.

This is a most unfortunate consequence of the Harvey Weinstein et al sex scandals.

Human interaction is inevitable: we are social animals. It is an uncertainty of what constitutes sexual harassment which can negatively affect workplace interactions, but this need not be the case: fostering good workplace dynamics is simply an education point. Of course, in many businesses, interacting with members of the opposite sex will be a nonissue. It ultimately depends on company culture, policies and process and employees’ trust in HR to appropriately deal with harassment.

Being the victim of harassment of any kind is very distressing. As a matter of law, sexual harassment has a very specific meaning and it is important that any individual who suspects that they are or have been the victim of unwanted conduct knows their rights.

The Law

The 1 January 2019 saw the introduction for the first time in the Isle of Man of a specific harassment provision under section 27 of the Equality Act 2017 (“the EA”). This means that sexual harassment is now a claim in its own right and not just a variety of direct sex discrimination.

Section 27 provides for three types of harassment: harassment related to sex (27(1)); sexual harassment (27(2)), and less favourable treatment because an employee rejects or submits to harassment (27(3)).

The conduct itself can be of any type: it will constitute harassment provided its purpose or effect is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. Hence the conduct, viewed in the abstract, might be completely innocuous in nature.

In layman’s terms, the law can be broken down as follows:

  • Related to sex

Conduct related to sex includes conduct that, regardless of the form it takes, is by reason of sex.

An employee (regardless of gender) does not have to show that the conduct was perpetrated specifically because of his or her gender. Rather, they can potentially bring a harassment claim where:

  1. a colleague persistently makes unpleasant, sexist remarks in the workplace, and
  2. those remarks are not directed at anyone in particular, but made indiscriminately to all and sundry.
  • Sexual harassment

This form of harassment has attracted the most media attention over the last 2 years, i.e. unwanted conduct of a sexual nature.

This encompasses verbal, non-verbal or physical conduct of a sexual nature, for example unwelcome sexual advances, sexual assault, sexual jokes, displaying pornographic images or sending emails/texts/messages of a sexual nature.

  • Less favourable treatment

Examples of this third type of harassment include, where:

  1. a manager whose repeated advances to a more junior female employee have been consistently rebuffed subsequently gives the woman a poor performance review because she had rejected him, or
  2. a manager derides a more junior female employee as ‘easy’ in front of colleagues because (even though she did not in fact want him to) she had previously allowed him to kiss her on repeated occasions.

Preventing unwanted behaviour within the workplace

Avoiding colleagues for fear of reprisals is not the answer to how employers best prevent harassment claims from arising.  Instead ACAS (Advisory, Conciliation and Arbitration Service) in the UK suggests developing a workplace policy [with staff] which should make clear that it applies to staff on and off the premises, including those working away from home base.

Advice includes:

  • Adopt policies and procedures for dealing with disciplinary and grievance matters
  • Ensure senior managers set a good example
  • Maintain fair procedures for dealing with complaints
  • Set out the standards of behaviour expected, record those standards in writing and train employees if necessary
  • Let employees know that complaints will be dealt with sympathetically and confidentially

What is an Employee to do in the face of unwanted behavior from a colleague?

Sexual harassment at work can take many forms. Let your manager or union or staff representative know of the problem, or seek advice elsewhere, perhaps from MIRS (Manx Industrial Relations Service) or an advocate specialising in employment and equality law.

Keep a diary of all incidents – records of dates, times, any witnesses, your feelings, etc. Keep copies of anything that is relevant. Bullying and harassment often reveal themselves through patterns of behaviour and frequency of incidents.

Tell the perpetrator to stop the behaviour that is causing you distress. If you cannot confront the colleague, consider writing a memo to them to make it clear what it is you object to in their behaviour. Keep copies of this and any reply.

Utilise your employer’s grievance procedure. If you decide to pursue a formal claim before the Employment and Equalities Tribunal you must do so within the strict time limits imposed under the EA, normally three months less one day from the date of the harassment.

For more information visit: www.acas.org.uk or speak to MIRS and/or a Manx advocate.

Leanne McKeown
27 June 2019