From Disclosure to Disgrace? Lessons From a Comparative Approach to Sexual Harassment Law
| Author | Phillip Tahmindjis |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| DOI | http://doi.org/10.1177/135822910500700413 |
International
Journal
of
Discrimination
and
the
Law,
2005,
Vol.
7,
pp.
337-371
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed in Great Britain
FROM
DISCLOSURE
TO
DISGRACE!
LESSONS
FROM
A
COMPARATIVE
APPROACH
TO
SEXUAL
HARASSMENT
LAW
PHILLIP TAHMINDJIS1
International Bar Association, London, UK
ABSTRACT
This article considers the analyses in this volume, as well as applicable international
law, to show how the law shapes, as well as being shaped by, social perceptions
of
sexual harassment. International and regional instruments are relatively weak in the
regulation
of
sexual harassment, so
that
measures taken
at
domestic level are
of
primary importance. Questions such as the motivation for passing domestic sexual
harassment legislation, the legal definitions used, the extra-definitional problems,
procedural variations and the effectiveness
of
these laws, are considered.
It
is
argued
that
an extra-legal approach
is
needed to address properly, and to redress adequately,
sexual harassment. Adequate labelling as a breach
of
human rights, as well as juridi-
cal naming,
of
sexual harassment may facilitate the development
of
effective laws.
INTRODUCTION
Sexual
harassment
is
not
simply misdirected sexual desire;
it
is the
exploitation
of
a relationship
ofunequal
power.2 A
lack
of
public dis-
course
on
sexual
harassment,
as
Morgan
points
out
in
this volume,
means
that
the
everyday
nature
of
sexual
harassment
is
not
appreciated: it is
regarded
as
something
rare
and
the
urgency
of
the
need
for
a legal response is less evident.
To
the
extent
that
literature
reflects
public
sentiment, perspectives
of
sexual
harassment
have
ranged
from
a sensationalist
approach
grounded
in a denial
that
this is really a
problem
for
women
at
all (as
in
Michael
Crichton's
novel Disclosure), 3
to
a sensationalist
but
more
balanced
approach
grounded
in
tragedy
(as
in
David
Mamet's
play
Oleanna),4
to
a
non-sensational
acceptance
of
the
hurt
sexualised
power
imbalances
can
cause
(as in
J.
M.
Coetzee's
novel Disgrace). 5
The
reflection
of
these different sentiments in public discourse is
often
played
out
in
adversarial
mode.
Juridical
approaches
to
sexual
harassment,
where
laws
sanctioning
it
exist
at
all,
are
often
characterised
by
an
ignorance
of
the
problem,
but
they
are
(slowly) improving,
although
often
hampered
by
the
paradigms
of
the law.
338
This article considers the analyses
found
in this volume,
and
by
comparing
factors
and
issues suggests
pathways
to
resolution. A com-
parative
approach
is
not
merely a
methodology
to
study differences
between laws
but
to
consider the interaction
and
connection between
law
and
society: the questions raised
are
not
merely legal questions
revolving
around
statutory
interpretation
or
common
law develop-
ments
from
inductive reasoning. As
Morgan
writes
in
her
article in
this volume, telling the stories
of
sexual
harassment
means
that
sexual
harassment
is
named,
rather
than
its victims being always
'fringe dwellers'.
The
articles
in
this volume tell the story
of
sexual
harassment
legislation in different countries, so
that
sexual harass-
ment
in legal discourse becomes something specific.
But
what is it,
and
how is it being treated?
Most
importantly,
how
successful have
the various legal
approaches
to
sexual
harassment
been?
INTERNATIONAL
AND
REGIONAL
LEGAL
APPROACHES
TO
SEXUAL
HARASSMENT
International Law
Traditional
approaches
to
international
law rarely crossed
from
the
public
to
the private realm within state sovereignty
and
thus
had
little
real
impact
on
problems
encountered
mainly by women.
6 Inter-
national
law, despite
now
exhibiting a considerable focus
on
the
human
rights
of
women, is still
remarkably
silent
on
the
problem
of
sexual harassment.
The
International Covenant on Civil
and
Politi-
cal
Rights
7
in
Article 3 provides
that
the States Parties
must
ensure
that
men
and
women
have
an
equal
right
to
the enjoyment
of
all
the rights in the
Covenant,
and
Article 2(2)
further
provides
that
the Parties
must
take
the necessary steps, including the
introduction
of
legislation,
to
give effect
to
these rights.
The
Convention on the
Elimination
of
All
Forms
of
Discrimination
Against
Women8 in parti-
cular
prohibits
discrimination against
women
(defined as differential
treatment
based
on
sex leading
to
unequal
enjoyment
of
human
rights
in
any
field)9
and
Parties
are
obliged
to
embody
both
the
principle
of
and
protection
against discrimination in
appropriate
legislation,
10
particularly with respect
to
employment.
11
The
Inter-
national
Labour
Organisation
has
also
produced
conventions
on
discrimination
in
employment.
12
But
none
of
these instruments
expressly refers
to
'sexual
harassment'.
Lacunae
in
international
law
are
neither
unknown
nor
rare.
A rules-based
approach
to
law
would
require the conclusion
that
international
law does
not
deal with sexual harassment. A process-
oriented
approach
13
would allow
for
the use
of
analogy, basic
339
principles,
comparative
law
and
'soft'
law
14
to
construct
an
approach
to
problem
solving. But sexual
harassment
is
not
just
a legal ques-
tion:
it
is a significant social issue. While
the
term
'post-modern'
encapsulates
many
theories,
15
in general terms it relates
to
a
radical questioning
of
'certainties' which
underpinned
Western
institutions, including legal systems.
To
arrive
at
the
possibility
of
equality
through
law,
rather
than
at
the mere
'meaning'
of
the
law,
an
approach
that
does
not
allow the silences
of
the law
to
entrench
power
relationships
should
be
adopted.
This assumes,
of
course,
that
in
the
context
of
sexual
harassment
we already recognise
what
sexual
harassment
is,
and
what
it
is
not.
As
the
essays
in
this volume show, the law itself shapes this very perception, as
well as being
shaped
by it.
An
inflexible
approach
will
take
us
nowhere.
There
is
in
fact
much
in
the
way
of
analogy, basic principles
and
'soft'
law
such
as
recommendations
of
international
bodies
to
indicate
that
sexual
harassment
is indeed
contrary
to
international
human
rights law, even
though
the
term
is
not
expressly used
in
the
major
instruments.
The
UN
Committee
on
the
Elimination
of
Discrimination
Against
Women,
set
up
under
Article
17
of
the
CEDA
W
Convention,
has
taken
the
view
in
its
General
Recommen-
dation
19
16
that
discrimination against
women
as described in
Article 1
of
the
Convention
includes acts
of
physical,
mental
or
sexual
harm
or
suffering directed against a
woman
because she is a
woman.
17
This
is
not
restricted only
to
acts
by
Governments.
18
In
particular,
the
Committee
has
held
that
equality in
the
workplace -
a
requirement
under
Article
11
-is seriously
impaired
when
gender-specific violence
such
as sexual
harassment
occurs.
19
This
may
take
the
form
of
physical
contact,
remarks, the display
of
pornography,
or
sexual
demands,
and
is
contrary
to
the
Convention
whether
it
takes the
form
of
quid
pro
quo
harassment
or
creates a
hostile
working
environment.
20 Effective legal measures
to
combat
and
redress sexual
harassment
are therefore a
requirement
under
the
Convention.
21
In
1993
the
General
Assembly
adopted,
in a
similar vein, a
Declaration
on
the
Elimination
of
Violence
Against
Women,
22 which expressly includes sexual
harassment,
and
the
1995
Fourth
(Beijing)
World
Conference
on
Women
includes
sexual
harassment
in
its list
of
forms
of
violence against
women
in
the
Platform
for Action,23 which
has
been subsequently
endorsed
by a
further
General
Assembly resolution
in
2000.24
There
is
thus
a consistent line
of
support
for
the
view
that
international
law proscribes sexual
harassment,
although
principally
through
the
mode
of
'soft'
law. However, several domestic
courts
have
endorsed
the
CEDAW
Committee's
view, including
the
Supreme
Court
of
India
25
and
the
Federal
Court
of
Australia.26
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