Sexual Harassment Law

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).

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The Advisory Conciliation and Arbitration Service’s publication ‘Bullying and Harassment at Work: Guidance for Employees’ and the Equal Opportunity Commision (EOC) and European Commission codes of practice give more detailed guidance as to what constitutes harassment (and are seriously relied on by those applying the law, which is at tribunal).

The law also stipulates (at s.41 SDA) that the employer is vicariously liable (i.e. will be liable for such unlawful acts of his employees even where he does not know that they are occurring) unless he has a ‘reasonable steps’ defence (as provided for at s.41(3) SDA. This requires an employer to adopt practices and procedures which are reasonably practical to prevent such unlawful behaviour. This broadly means adopting the codes mentioned above as a written policy and communicating same to all employees. ‘The workplace’ is broadly defined (for example following Lincolnshire Constabulary v Stubbs [1999] it included a drink after work).

Since inclusion of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 into the SDA, it is notable that proving sexual harassment has a reduced burden, ‘to establish sufficient facts from which it can be presumed that there has been discrimination’. The burden is then upon the employer to demonstrate to the contrary.

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Finally, unfavourable treatment as a result of making a complaint in good faith (victimisation) is prohibited at s.4(1).

This is a preview of the whole essay

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Finally, unfavourable treatment as a result of making a complaint in good faith (victimisation) is prohibited at s.4(1).

On then to evaluation. Turning to Fuller’s guidance, is there a failure to communicate the law? The EOC found that 72% of employers had a sexual harassment policy (and since the larger ones were more compliant a much higher percentage of employees are therefore afforded theoretical protection). Less clear (but more important) is how many employees ‘know their rights’? Employers may have paid lawyers to have their ‘reasonable steps’ in place on paper but still somewhere between a third and a half of their workforce will experience sexual harassment. Given the Industrial Society’s 1993 conclusion that 54% of women had been sexually harassed at work (or the TUC’s 27% estimate) the law clearly does fail since such unlawful behaviour remains endemic.

As to Fuller’s second and third points (good law is clear and understandable and different rules are not contradictory), Fredman (‘Discrimination Law’ (2002)) argues compellingly as his third reason for the failure of sexual harassment law that this ‘results from … legal provisions which are extremely complex, not least because of the interaction of anti-discrimination statues with EU law and … the Human Rights Act.’

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Fuller’s last point (that bad law can be identified where there is ‘a failure of congruence between the rules as announced and their actual administration’) condemns the current law given that 75% of sex discrimination cases did not reach tribunal in 1998-99 and only 7% of all sex discrimination cases were successfully brought. Not surprising given that awards (£2-5,000) are often being less than the legal fees which must be found regardless of outcome. Clearly then there is a ‘failure of congruence’ – the tribunal mechanism is not usually used.

It is difficult to draw conclusions. This essay is confined to consideration of the course material provided. The law changed in 2001 (when the new EU code of practice and burden of proof amendment commenced) and the statistics given (particularly readings 40 and 42) all relate to earlier years. The EOC ‘analysis’ is questionable. 54 hand picked cases over four years cannot easily be viewed as sufficiently reliable data and they can be expected to have had self-aggrandising reasons in reaching their conclusions (no such organisation ever asked for a reduction in its role because its importance has reduced over time). Nevertheless their headline ‘outcome’ that ‘in over 90% of cases the person bringing the complaint had lost their job or resigned as a direct result’ would clearly point to a serious failure of the law.

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Notably, both Fredman (ibid) and others (eg. Smart (‘Feminism and the Power of Law’ (1989)) agree that the law has its limitations, particularly when poorly enforced and that behavioural and educational reform using non-legal means is required. Fredman notes ‘reformulation of the aim of the law … towards promoting equality through structural change.’ It remains to be seen whether this different direction will work but it has clearly come about because of a perceived failure of the law to alter behaviour.

In respect of both Ron and Fred, provide advice on the following:

Consider the principles of penal theory and explain which you think most appropriate to be used in determining the sentence following conviction

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.

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Reparation, which is arguably currently in vogue, is victim-centric, concentrating on the offender making good the victim. As with deterrence, it operates at two levels with the offender compensating the victim (perhaps inter alia with an apology) as well as society at large (for example with unpaid community service).

Rehabilitation concentrates on the offender, seeking to alter his behaviour to prevent recurrence of the unlawful behaviour. In contrast to retributively motivated sentencing, it is forward looking. By way of example, a drink driver may have his driving ban period reduced for attending an awareness course. ‘Rehabilitation’ here will occur if he is persuaded to permanently alter his behaviour to be compliant.

Finally, incapacitation (restriction of liberty) is primarily motivated by a need to protect the public – the greater the need for protection, the longer the ‘stretch’. Lesser forms of incapacitation include curfews and a variety of orders.

What then will the judge do in Ron and Fred’s cases? His or her personal preferences vis-à-vis penal theory will be trammelled by the need for consistent sentencing. This is imposed in the form of the guidance of the Sentencing Advisory Panel and Sentencing Guidelines Council and within the statutory constraints of the Criminal Justice Act 2003(CJA 2003), particularly Section 142(1).

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Notably, s.142(1) CJA 2003 sets out the five penal theories described above as the starting point and without priority. Thus a judge has some scope to apply personal preference within the prescribed framework.

The judge is required to sentence based on seriousness of the crime. This in turn is defined in terms of culpability and harm done (both to an individual and society generally).

The judge must then adjust the sentence by assessing the offender’s behaviour (that is because of aggravating and mitigating circumstances). This often involves a personal plea of mitigation on the basis of good character. Ron’s ready admission and cooperation should generally ‘earn’ a third reduction in the sentence he would otherwise have received. There is also scope to demonstrate good character. (For Fred the opposite applies for both points).

Finally, a judge should address any general social protection issues (for example domestic burglary is regarded more seriously as harming society in general and therefore requiring, ceteris paribus, a harsher sentence).

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In terms of culpability, clearly both Ron and Fred had ‘intention to cause harm’ (the most serious of the four categories). Relative to harm done however, Ron’s theft of a television from a large company, including its having already been recovered, is arguably ‘virtually victimless’. In conjunction with Ron’s ‘bitter regret’ it is difficult to see much need for reparation. In retributive terms, the crime’s modest proportions should be matched to a lenient sentence. Deterrence in Ron’s case is arguably more involved. Granted, his ‘recent … record is good’ but his past does show some weakness of character. (Roy’s past record is given for sentencing purposes so presumably it should be used). His ‘bitter regret’ over a ‘spur-of the-moment decision’, recent redundancy and loss of house are all mitigating factors. However, he has committed a crime. Again. Incapacitation seems unproductive – nobody needs protecting from Ron. Finally, rehabilitation appears unnecessary for Roy and the public purse undoubtedly has more meritorious cases.

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Contrast Fred with Ron. Does Fred’s view that ‘his employers were insured’ (emphasis added) infer admission of a series of such crimes? If so, his past record is clearly a significantly aggravating factor. Even if not, his attitude and lack of contrition are aggravating factors in themselves. £ 20,000 is a substantial sum. Unlike Ron, imprisonment of Fred will not affect his family and Fred clearly needs a jolt if individual deterrence is to be achieved. In reparative terms, Fred has a substantial debt to repay. Fred’s attitudes do not appear conducive to rehabilitation but arguably there is a case for trying to educate him as to why his crime is not victimless.

How then to sentence? A judge will have a large variety of possible sanctions available, loosely classifiable into fines, probation and incapacitation. The selection would reflect generally mitigating factors and a relative minor offence in Ron’s case in contrast to generally aggravating factors and a relative serious offence in Fred’s, resulting perhaps in a community-based order for Ron’s (probably from a magistrate). Fred’s case would more likely be heard in the Crown Court where the statistics reveal (W100, reader 2, reading 46 refers) that an immediate prison sentences is a common outcome from a judge.

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By way of conclusion, the writer’s own view is that Ron should receive a conditional discharge (with a long conditional period and threat of stiff penalties in the event of a further offence since his bitter regrets have a habit of wearing off) 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.

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