Legal Regulation of Sexual Harassment in Ireland: a Critical Evaluation
| Author | Leo Flynn |
| Published date | 01 March 1995 |
| Date | 01 March 1995 |
| DOI | 10.1177/135822919500100103 |
International Journal
of
Discrimination and the Law,
1995,
Vol.
1,
pp.
3-27
1358-2291/95
$10
©
1995
A B Academic
Publishers.
Printed
in
Great
Britain
LEGAL REGULATION OF SEXUAL HARASSMENT IN
IRELAND: A CRITICAL EVALUATION
LEO FLYNN*
School
of
Law, Kings College, Strand, London WC2
ABSTRACT
'The legal treatment
of
sexual harassment in the workplace has produced difficult
challenges for anti-discrimination law wherever this phenomenon has been reco-
gnised.
In
Ireland a large body
of
decisions on this issue has been built up over
the last decade. Although
an
increasingly sympathetic approach
to
the problems
involved can be discerned in decisions made in this period, the limitations inherent
in liberal legal ideology persist. These are rooted in the tendency
of
the law to
treat socially contingent, gendered power structures as natural, and in the enduring
strength
of
the division between the public and private spheres. Issues such as
employer responsibility, employee mitigation
of
harm, same-sex sexual harassment,
and the analysis
of
evidence in sexual cases illustrate these limitations. This article
points to some improvements which might be made in gender equality laws to
deal with such issues while acknowledging that the effect
of
law is to regulate
rather than prohibit sexual harassment in the workplace.'
INTRODUCTION
Ireland, in common with the other member States
of
the Euro-
pean Union, has legislation to ensure equal treatment between men
and women in the workplace. This prohibition on discrimination in
employment must deal with a range
of
deeply rooted practices
if
it
is to be successful in offering equal opportunities to all workers,
regardless
of
gender. Sexual harassment is one
of
the most important
of
those practices, partly because
of
its potentially devastating effect
on those subjected to it, partly because
of
the conceptual and prac-
tical difficulties which it embodies for the law. This article scrutin-
izes Ireland's gender equality legislation as it relates to sexual harass-
ment. That will be a critical examination, informed by feminist
concerns specifically, including the role
of
divided public and private
spheres, and the persistent naturalization
of
inequality.
* I
am
grateful
to
Aileen McColgan and the external readers for comments and
suggestions but retain responsibility for this article.
4
FEMINIST
ANALYSIS
OF
SEXUAL HARASSMENT
'Creating' and Locating Sexual Harassment
A central feature in much
of
the feminist thought and action
which has emerged in recent decades is
'naming',
establishing a basis
of
experience
on
which to challenge at multiple levels patriarchy's
assumptions and practices relating to women (Frazer and Lacey,
1993; p. 38).
The
creation
or
'discovery'
of
sexual harassment
by
feminists is a paradigmatic instance
of
this process.
It
provides a
formal label for a phenomenon which working women have probably
always encountered but which had not previously been identified as
systematic
or
worthy
of
comment (Rhode, 1989; p. 231). In that
sense, feminists have 'created' a problem which did not exist until
that time. The novelty
of
sexual harassment is not rooted in the
sudden appearance
of
the diverse practices and attitudes which con-
stitute the institution
of
sexual harassment; however, in the past their
significance was arranged in such a way that they lacked connection
with each other and gave rise to no ground
of
complaint.
By
estab-
lishing space from which women who have been sexually harassed
can assert that an injustice has been done to them, feminist analysis
and practice leads to pressure for social and legal change.
This pressure for change must
be
placed against the background
of
women's
experiences in the labour market.
As
a group, women
are under-represented and less well rewarded than male workers in
market economies. This observation holds true irrespective
of
the cri-
terion
of
performance adopted, whether gross earnings, hourly ear-
nings, hours worked, or representation in high status employment
sectors. The marginal position
of
women within the paid economy is
sustained
by
a network
of
attitudes woven about male dominated jobs
which is hostile to women who upset an apparently pre-ordained,
segregated order. Sexual harassment is the most intimate manifesta-
tion
of
employment discrimination faced
by
working women.
Prompted by feminist activists and scholars, the legal system has
begun to recognise that problem. Anti-discrimination legislation has
been interpreted in many jurisdictions to encompass sexual harass-
ment within its scope. This development is not necessarily a clear-cut
victory for women as a group
or
for feminism. Feminist activity
acknowledges
law's
limited ability to alter
or
improve
women's
work-place experiences, not least because
of
powerful claims to truth
made
by
a legal discourse which is deeply gendered. Law can
be
used strategically, grounding attempts to extend feminist understand-
ings
of
sexual harassment, as part
of
women's
attempt
'to
manipulate
the opportunity offered by the legal forum to renegotiate authoritative
definitions
of
social relations' (Jackson, 1992; p. 212; 212). This art-
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