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Sources of International Law Related to Sexual Harassment

Sexual harassment has been recognized around the globe as a form of
discrimination and violence against women. To recognize, some international
statements of law and principle which paved way to the legislation that
prohibits sexual harassment are as follows:
1. United Nations
General Assembly Resolution 48/104 on the Declaration on the
Elimination of Violence Against Women defines violence against
women to include sexual harassment, which is prohibited at work, in
educational institutions, and elsewhere (Art. 2(b)), and encourages
development of penal, civil or other administrative sanctions, as well
as preventative approaches to eliminate violence against women (Art.
4(d-f)). The Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW) directs States Parties to take
appropriate measures to eliminate discrimination against women in all
fields, specifically including equality under law, in governance and
politics, the workplace, education, healthcare, and in other areas of
public and social life. (Arts. 7-16). Moreover, the Beijing Platform for
Action, para. 178, recognizes sexual harassment as a form of violence
against women and as a form of discrimination, and calls on multiple
actors including government, employers, unions, and civil society to
ensure that governments enact and enforce laws on sexual
harassment and that employers develop anti-harassment policies and
prevention strategies.
2. International Labour Organization (ILO)
The ILO Committee of Experts on the Application of Conventions
and Recommendations has confirmed that sexual harassment is a form
of sex discrimination covered by the Discrimination (Employment and
Occupation) Convention (No. 111) of 1958. The ILOs Indigenous and
Tribal Peoples Convention (No. 169) also specifically prohibits sexual
harassment in the workplace.
3. African Union & Subregional Bodies
The Protocol to the African Charter on Human and Peoples
Rights on the Rights of Women in Africa obligates State Parties to take
appropriate measures to:
a. Eliminate all forms of discrimination against women and
guarantee equal opportunity and access in the sphere of
education and training;
b. Protect women from all forms of abuse (including sexual

c. Ensure transparency in recruitment, promotion and dismissal

of women, and combat and punish sexual harassment in
education and the workplace.
Sub-regional bodies in Africa also have addressed sexual harassment. For
example, the Southern African Development Community Protocol on Gender and
Development, in article 22, requires that states parties by 2015 must:
enact legislative provisions, and adopt and implement policies,
strategies, and programmes which define and prohibit sexual
harassment in all spheres, and provide deterrent sanctions for
perpetrators of sexual harassment.
The protocol has been signed by Angola, Democratic Republic of
Congo, Lesotho, Madagascar, Mauritania, Mozambique, Namibia, South
Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. The Economic
Community of West African States, which includes Benin, Burkina Faso,
Cape Verde, Cote dIvoire, Gambia, Ghana, Guinea, Guinea Bissau,
Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo, also has
put in place regional policy on sexual harassment in the workplace and
in educational institutions.
4. Europe
The Charter
of the
Union specifically enshrines the right to be free from discrimination on
the basis of sex, and Article 23 obligates states to ensure equality
between men and women in all areas. This principle has been further
elaborated through several directives dealing with sexual harassment,
including Directive 2006/54/EC related to equal opportunities in
employment and the Directive 2004/113/EC related to equal treatment
in access to goods and services. These directives require member
states to incorporate into national law the following principles:
a. The Charter of Fundamental Rights of the European Union
prohibits discrimination on the grounds of sex and enshrines the
right to equal treatment between men and women in all areas,
including employment, work and pay, vocational training, and
access to goods and services;
b. Clarify that sexual harassment constitutes discrimination on the
grounds of sex;
c. Prohibition, at a minimum, of behavior meeting the Directives
definition of sexual harassment in the workplace and in the
provision of goods and services;
d. Encourage employers to take measures to combat all forms of
sexual discrimination and prevent harassment in the workplace.

The Council of Europe Convention on preventing and combating

violence against women and domestic violence (the Istanbul
Convention) is the first legally-binding instrument in Europe on
violence against women and domestic violence. It obliges states to
reform laws, implement practical measures to aid victims, and,
importantly, allocate adequate resources for an effective response to
violence against women and domestic violence. In addition, states must
involve all relevant actors in the implementation of the Istanbul
Convention, including national parliaments and institutions and nongovernmental and civil society organizations.
Article 40 states that Parties shall take the necessary legislative
or other measures to ensure that any form of unwanted verbal, nonverbal or physical conduct of a sexual nature with the purpose or effect
of violating the dignity of a person, in particular when creating an
intimidating, hostile, degrading, humiliating or offensive environment,
is subject to criminal or other legal sanction.
The Convention will enter into force once ten countries have
ratified it. Eight of the ten ratifying countries must be Council of Europe
member states.
5. Organization of American States
The Organization of American States treats sexual harassment as
an issue of violence against women, instead of a discrimination issue.
Accordingly, the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence Against Women (Belem do
Para) affirms the right of women to be free from violence, including
sexual harassment in employment or any other context, and requires
states to impose penalties and enact legal provisions to protect women
from harassment and other forms of violence. Article 2 states that
sexual harassment in the workplace, educational setting, health
facilities, or any other place constitutes violence against women.

In the United States, courts have since 1977 recognized some such behavior as a form of
sex discrimination; not only the superior who seeks sexual access but also the employer who
fails to restrain the behavior of other employees may be liable to suit. The 1991 Senate hearings
in which Professor Anita Hill testified that Supreme Court nominee Clarence Thomas had made
unwelcome advances to her some years earlier when she worked for him, and the "Tailhook"
scandal, involving sexual hazing by male officers during a navy gathering in Las Vegas, Nev., in
Sept., 1991, brought the issue of sexual harassment to national attention. In 1992 the Supreme
Court gave individuals harmed by a school's discrimination (now interpreted as including failure
to discipline students who harass other students) the right to sue the school for damages. In a
series of 1998 decisions the Supreme Court ruled that employees in the workplace are to be
protected from harassment by people of the same sex; that an employee need not suffer a
tangible job detriment in order to sue for harassment; and that a company having effective
complaint procedures that an employee unreasonably fails to utilize is protected from suit.
Recent debates have centered on, among other things, the apparent wide differences in
men's and women's interpretations of sexual talk; on whether schools and colleges can or should
impose speech and conduct codes or take other measures to protect students, especially females,
from sexual talk or behavior; and on whether pornography is in itself a form of sexual
harassment. It is apparent that the interests of protection from sexual harassment and of freedom
of speech will continue to clash.
Source: M. Boland, Sexual Harassment in the Workplace (2007)
C.N. Baker, The Womens Movement Against Sexual Harassment (2007)

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Placement of Sexual Harassment Laws in National Legislation

Although often associated with the workplace, sexual harassment can occur in many
contexts. Accordingly, drafters should review a broad spectrum of national legislation to
determine where provisions on sexual harassment may need to be included. Around the world,
sexual harassment provisions are found in criminal codes, labor codes, health and safety
legislation, anti-discrimination and equal opportunity laws, as well as education and licensing
statutes, to name a few.
In some countries, sexual harassment is addressed through laws related to assault or
defamation. This approach is not ideal, however, as it does not recognize the specific gendered
aspects of sexual harassment, it does not recognize harassment as a form of discrimination, and it
does not provide for specifically tailored remedies. A preferable approach ensures that sexual
harassment is included as a specific form of prohibited discrimination in broad-based antidiscrimination legislation. In many national contexts, a code-specific approach is also used, e.g.,
prohibiting discrimination through the labor code, health and safety legislation, licensing
statutes, etc.
In Pakistan, two different laws were proposed to ensure that women in all work
environments are fully protected. As in many emerging economies, women in Pakistan work
both in the formal and informal sectors, and womens rights organizations realized that different
legislative approaches were needed to ensure protection for women in different sectors of the
economy. A 2010 civil law changed the way that claims of sexual harassment are handled in the
formal employment sector. The law makes mandatory the implementation of policies that have
been voluntarily adopted by many employers, called The Code of Conduct for Gender Justice at
the Workplace. The law requires that employers in Pakistan incorporate the Code of Conduct into
their workplace policies and establish Inquiry Committees to investigate claims of sexual
harassment. A law to amend Pakistans Penal Code and Code of Criminal Procedure also
expanded the definition of sexual harassment to cover the workplace and increased the penalties
for perpetrators. The criminal code amendment was the result of ongoing consultation with
women working in the informal sector, such as agriculture and markets, who voiced concern that
measures proposed to establish workplace grievance committees, for example, might not work
effectively to protect them. The criminal law in Pakistan now allows for a term of imprisonment
of up to three years and a fine of up to 500,000 rupees, or both.
In Argentina, sexual harassment is prohibited in Law No. 26485, which addresses
discrimination and violence against women generally. However, for public sector employees,
sexual harassment was specifically prohibited by Executive Order, No. 2385/93.
In Panama, sexual harassment is addressed in the labor code, the penal code, and in a law
specifically prohibiting sexual harassment in public employment. (See: Act No. 9 of 20 June
1994; Act. No. 44 of 1995;Law No. 38 of 2001.

In Canada, New Zealand, and Fiji, among other nations, sexual harassment is prohibited
in national human rights legislation.
In Israel, sexual harassment is a criminal violation and a civil violation, so perpetrators
can be criminally charged as well as sued.
Venezuelas law specifically addresses sexual harassment as a form of violence against

Core Elements of Sexual Harassment Laws

Sexual harassment can occur in multiple contexts and legislation should comprehensively
address each of these in order to fully protect the rights of women and girls. This module
includes specific information about harassment in employment, education, sports, housing, and
provision of goods and services. In any context, however, laws prohibiting sexual harassment
should include the following general components:
a. A statement of purpose, also known as a preamble, that references
international, regional, and existing national protections against
discrimination and violence against women;
b. A broad definition that includes examples of prohibited behavior;
c. Judicial and/or administrative procedures to enforce the prohibition on
harassment, including confidential complaint procedures;
d. Provision for effective, proportionate compensation and/or reparation
related to damages and losses suffered as a result of the harassment;
e. Dissuasive penalties for perpetrators;
f. Placing the burden of proof in civil proceedings on the alleged
perpetrator, once a prima facie case is made;
g. Protections against retaliation;
h. Guidance for interpretation of the law;
i. Measures for prevention such as policy development, including
confidential complaint procedures, and training;
j. Designated oversight body with the power to enforce the law, provide
assistance to victims, collect data, and publish appropriate reports.

Sexual Harassment as Discrimination

Anti-discrimination legislation allows for protection against multiple types of
discrimination and thus can provide important protections to women who may face harassment
on multiple grounds at once, such as race and sex, or sexual orientation and sex. Virtually all
sexual harassment legislation around the world prohibits discrimination on the basis of sex.
In order to effectively address all sexual harassment, laws should also broadly protect
victims from harassment that may be perpetrated based on an array of sexually-based
characteristics of the victim, such as sexual orientation and gender identity or expression.
Legislation should cover these categories whether the characteristic is actual or perceived. Also,
legislation should explicitly prohibit harassment on the basis of actual or perceived association
with others in one of the covered categories. These principles may also be particularly important
in educational settings.
Like many countries, Ireland addresses sexual harassment in several different laws. It
addresses some forms of sexual harassment in broad anti-discrimination legislation which also
covers discrimination on the basis of race, sexual orientation, marital status, age, disability, etc.
The Equal Status Act, quoted below, does not address sexual harassment in the workplace that
issue is covered in Irelands Employment Equality Act of 1998 but prohibits harassing conduct
in several other contexts, including the provision of goods and services, accommodation, and
education. It also provides that proprietors and responsible persons can be held liable for acts
of harassment occurring in their zone of responsibility, unless they take reasonable measures to
prevent such acts.
Sexual harassment takes place where a person
(a) subjects another person (the victim) to an act of physical intimacy,
(b) requests sexual favours from the victim, or
(c) subjects the victim to any act or conduct with sexual connotations, including spoken
words, gestures or the production, display or circulation of written words, pictures or other
material, where
(i) the act, request or conduct is unwelcome to the victim and could reasonably be
regarded as offensive, humiliating or intimidating to him or her, or
(ii) the victim is treated differently by reason of his or her rejection of or
submission to, as the case may be, the act, request or conduct or it could reasonably be
anticipated that the victim would be so treated.
(5) Harassment takes place where a person subjects another person (the victim) to any
unwelcome act, request or conduct, including spoken words, gestures or the production, display
or circulation of written words, pictures or other material, which in respect of the victim is based
on any discriminatory ground and which could reasonably be regarded as offensive, humiliating
or intimidating to him or her. Equal Status Act of 2000, sec.11.
CASE STUDY Mauritius

In 2008, Mauritius passed landmark anti-discrimination legislation that included

provisions on sexual harassment in employment, provisions of goods and services,
accommodation, etc. The law defined sexual harassment, made it a criminal offense, and laid out
in article 26 which areas of public life are covered by the prohibition:
No employer, or agent of an employer, shall sexually harass an employee or a
person seeking employment from the employer.
No job contractor or principal shall sexually harass a contract worker.
No employee shall sexually harass a fellow employee or a person seeking
employment from his employer.
No agent of an employment agency shall sexually harass a person in the course of
providing, or offering to provide, any of the agencys services to that person.
No person referred to in section 15, or his employee, shall sexually harass
another person in relation to the conferment, renewal, extension, revocation or withdrawal of an
authorisation or qualification referred to in that section.
(6) (a) No member of the staff of an educational institution shall sexually harass a
student at the institution or a person who is seeking admission as a student.
(b) No student at an educational institution shall sexually harass another student
or a member of the staff.
(7) No person referred to in section 18 shall sexually harass another person in the
course of providing or offering to provide goods, services or facilities to the other person.
(8) No person referred to in section 19 shall sexually harass another person in the
course of providing, or offering to provide, accommodation to the other person.
(9) No person shall sexually harass another person in the course of dealing with the
other person in connection with
(a) disposing, or offering to dispose of, any immovable property to the other
(b) acquiring, or offering to acquire, any immovable property from the other
(10) No officer or member of a company, partnership, "socit", registered association
or club shall sexually harass a member or other member, as the case may be, or a person
seeking to become a member.


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