Employers' Legal Liability for Sexual Harassment of Employees by Third Parties
| Author | Sam Middlemiss |
| Date | 01 March 2009 |
| Published date | 01 March 2009 |
| DOI | 10.1177/135822910901000104 |
International Journal
of
Discrimination and the Law,
2009,
Vol.
10,
pp.
39-49
1358-2291/2009
$10
©
2009
A B Academic Publishers. Printed
in
Great Britain
EMPLOYERS'
LEGAL
LIABILITY
FOR
SEXUAL
HARASSMENT
OF
EMPLOYEES
BY
THIRD
PARTIES
SAM MIDDLEMISS
Department
of
Law,
The
Robert
Gordon
University, Aberdeen
ABSTRACT
The issue
of
whether or not an employer should be vicariously liable under statute
for sexual harassment perpetrated against his employees by third parties
is
an
important one that has been undecided until recently. Whether the issue has
been decided by the legislative rules now covering it remains to be seen. Some com-
mentators, including this writer, would disagree that the matter has been resolved
sufficiently and argue the need for further change.
'Thus an employer
is
not liable for third party harassment
of
which they had
no knowledge, or for one off incidents
of
third-party harassment, or for conduct
beyond their control.''
This article will briefly outline the chequered history
of
this area
of
law and
analyse how recent changes in
UK
law2 (which were inspired by a
EU
Directive
and a successful challenge to the legal rules in the
UK
raised by the Equal Oppor-
tunities Commission (EOC) in
Equal
Opportunities Commission
v.
Secretary
of
State
for
Trade
and
Industry)3 and implemented
by
the
Sex
Discrimination Act
1975
(Amendment) Regulations have finally tried to resolve the issue.
The legal effect
of
these changes will be considered as will their practical
impact on employers in the UK. The deficiencies in the legislative rules which
now apply will also be highlighted. Developments in other relevant areas
of
harass-
ment law will also be considered.
BACKGROUND TO THE CURRENT LAW
Harassment
is defined
under
Section
3A
of
the Sex Discrimination
Act
1975 as occurring where
the
employer
or
his employee
'on
the
ground
of
her sex
...
engages in unwanted conduct
that
has the purpose
or
effect (a)
of
violating her dignity
or
(b) creating
an
intimidating,
hostile degrading, humiliating
or
offensive environment for her.
The
conduct is deemed
to
have the required effect
if
having regard
to
all
the circumstances, including in particular the perception
of
the
woman
it should reasonably be considered as having
that
effect. '4
Of
course the
harasser
may
not
be the employer
or
his employee
but
a
third
party
that
through
his relationship
with
an
employer
comes in
contact
with
an
employee
and
subjects
her
or
him
to
To continue reading
Request your trial