What is Sexual Harassment?

The Employment Equality Acts 1998 – 2011 render the sexual harassment of employees unlawful.  Sexual Harassment is a form of discrimination on the grounds of gender in relation to conditions of employment. 

The Employment Equality Acts 1998 – 2011 define sexual harassment as any form of

“unwanted verbal, non-verbal or physical conduct of a sexual nature, 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.  Unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Sexual harassment can take many forms, some examples of which are provided below.  The examples are provided for illustrative purposes only.  This non-exhaustive list is taken from the Equality Authority’s Code of Practice on Sexual Harassment and Harassment at Work.

  • Physical conduct of a sexual nature – this may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body, assault or coercive sexual intercourse
  • Verbal conduct of a sexual nature – this may include unwelcome sexual advances. Propositions or pressure for sexual activity, continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments
  • Non-verbal conduct of a sexual nature – this may include the display of pornographic or sexually suggestive pictures, objects, written materials, emails, text messages or faxes.  It may also include leering, whistling or making sexually suggestive gestures
  • Sex-based conduct – this may include conduct that denigrates or ridicules an employee or is intimidatory or physically abusive to him or her because of his or her sex, such as derogatory or degrading abuse or insults which are gender-related

Some other important points to note:

  • The Acts protect employees from sexual harassment by the employer, fellow employees, clients, customers and other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace.  This may include those who supply or deliver goods/services to the employer, volunteers or those retained on maintenance contracts or other types of professional contract
  • In addition, the Acts also  cover situations where sexual harassment takes place beyond the workplace such as work-related conferences, training and social events and so on
  • A single incident may constitute sexual harassment
  • It is up to each employee to decide what behaviour is “unwanted” and from whom such behaviour is  “unwanted”
  • The fact that an individual has previously agreed to the behaviour does not stop him/her from deciding that it has now become “unwanted”
  • The intention of the harasser is irrelevant and the fact that he/she had no intention of  harassing a colleague/colleagues is no defence

Summary of Legal Tests

For a finding of sexual harassment to be upheld, the investigator(s) must be satisfied that on the balance of probabilities that;

a)    the complainant is an employee of the employers and that the conduct of the person complained of occurred in the employee’s workplace or otherwise in the course of his/her employment

b)    The conduct complained of, was by a person who was an employee or employer or someone with whom the employer contractually obliged the employee to come into contact in the employee’s workplace or otherwise in the course of his/her employment; and

c)    The conduct complained of;

i.        Took the form of unwanted verbal, non-verbal or physical conduct of a sexual nature

ii.        Had the purpose or effect or violating the person’s dignity

iii.        Created an intimidating, hostile, degrading, humiliating or offensive environment for the person