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Sexual Harassment Law

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Introduction

Course W100: eTMA 6: Explain the law of sexual harassment in the workplace. Critically evaluate the current law. This essay will first summarise the relevant law first and then analyse its effectiveness. For this second aim, the structure will be borrowed from Fuller's 'The Morality of Law' (1969). Before we can evaluate, we must first know what the law of sexual harassment in the workplace is. In broader context, discrimination is generally unlawful and sexual harassment is one such type of unlawful behaviour. The Sex Discrimination Act 1975 as amended by the Employment Equality (Sex Discrimination) Regulations 2005 and The Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SDA) sets out two types of sexual harassment in the workplace at s.4A(1). Both provide that sexual harassment in the workplace is 'unwanted conduct [...] that has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment�. The first offence is defined in terms of behaviour which is discriminatory in the sense that the offender has treated the victim differently from the way they would treat a person of the opposite sex (of the victim). The second definition provides that such 'unwanted conduct' where 'of a sexual nature' is unlawful in itself (thus thwarting the defence of the offender's being bisexual). ...read more.

Middle

Explain what issues will be considered by the judge or magistrate. The question first requires an explanation of the various penal theories. With the factual foundations established it will then be possible to discuss how the various theories might be adapted by judges in sentencing. The question also calls for the writer's own opinions on sentencing. For the sake of economy, these will form the conclusion. The prevalence of any particular theory is variable through time and they are not mutually exclusive. There are five main theories each now discussed in turn. Retributive theory is concerned with the undeniably natural if often unattractive human characteristic of seeking requital in terms of a punishment which matches the harm done. Clearly this is very subjective. Such a 'just deserts' approach focuses on the past. Deterrence operates at two levels - individual and societal. For the former, the usual aim of the court will be to punish in such a way that the offender is persuaded not to repeat his offence. Relative to society generally, punishment is 'pour encourager les autres' - it is assumed we will take note of an individual's punishment and rationalise that behaving similarly is not worth the risk of the sanction. ...read more.

Conclusion

plus a modest reparation order (perhaps a few shifts cleaning the supermarket). For Fred, the writer would see a contribution to prosecution costs as logical but has reservations as to the effectiveness of imprisonment except where public protection is required. By way of innovation, since Fred is so money-orientated, he could be ordered to pay back what he had stolen over a long time by instalments using an attachment of earnings order (a long-term reminder as deterrence). Other employers would be protected by stipulating his record as discloseable. If Fred were to reoffend, he would be required to spend his leave on unpaid community work, thus redefining 'expensive holiday' in a way he would clearly understand. Bibliography Open University, course W100, Block 5, "Sanctions" (all units) Open University, course W100, Reader 1 'The Morality of Law', Fuller (1964) (Reading 4) - or see the summary in Block 1, page 51 'White collar crime in modern England: financial fraud and business morality, 1845-1929', Robb, G (1992) (Reading 44) Open University, course W100, Reader 2 Readings 31 to 44 inclusive Open University, course W100, Assessment Guide Part 1. Open University, course W100, Assessment Guide Part 2. Open University, course W100, DVD (block 5 only) Open University, course W100, Block 5 website, ECO archive website information. Wordcount 2,005 (excluding '... ...read more.

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