The antithesis of gender equality is sexual harassment. This is the case because such practice not only degrades and minimises the work ethics of co-workers and employees but also sends out an animalistic message that victims are not human beings with brains and capabilities but mere sexual objects.
The Employment and Industrial Relations Act lays down that: “It shall not be lawful for an employer or an employee to harass another employee or to harass the employer by subjecting such person 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 that person, is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person.”
This is a very open definition of what sexual harassment is. Fully aware of the creativity of human nature, the rationale behind such an open definition is not to exclude other acts that also amount to sexual behaviour.
In fact, the law further elaborates that sexual harassment takes place when the victim is subjected to an act of physical intimacy, is asked for sexual favours, has been subjected “...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 the victim; (ii) the victim is treated differently, or it could reasonably be anticipated that the victim could be so treated, by reason of the victim’s rejection of or submission to the act, request or conduct”.
All the above is conducive to an offensive, humiliating and intimidating environment for the victim to work in.
Sexual harassment amounts to discrimination based on sex because if a person is being sexually harassed he is not deemed to be the equal of the perpetrator but merely an object to be used for sexual gratification. This line of thinking was strengthened in the American case of Meritor v Vinson where the Supreme Court “ruled that sex harassment was a type of sex discrimination...” (Eros R. DeSouza and Joseph Solberg, Incidence and Dimensions of Sexual Harassment across Cultures, in Michele Paludi and Carmen A. Paludi Jr (eds), Academic and Workplace Sexual Harassment: A Handbook of Cultural, Social Science, Management, and Legal Perspectives, Praeger, 2003, p4).
Sexual harassment also amounts to a criminal offence because, apart from the sexual offences found in the Criminal Code, the Criminal Code has a specific sub-title that talks primarily about harassment. However, harassment as found in the Criminal Code is not specifically narrowed down to sexual harassment only. It is given a wider definition so that any kind of behaviour can fall within the ambit of the definition of harassment as long as it causes distress to the victim and is done over a period of time. Therefore, a rare action does not amount to harassment and the perpetrator ought to know that his behaviour was causing distress to the victim.
A Maltese landmark case in this regard is that decided by the industrial tribunal in Doris Bonello v The General Soft Drinks Company Ltd on July 27, 2010.
In this case, the person was victimised over a period of time by the sales and marketing manager whose behaviour was abusive, intimidating and offensive culminating in an incident when, during a meeting in the presence of a number of people, he made sexual remarks in her regard. The tribunal declared that the words used had a sexual connotation.
The company argued that what the manager had said did not amount to sexual harassment because there was no course of conduct as required in the Criminal Code’s definition of harassment. The tribunal, which does not have criminal jurisdiction, referred to the Employment and Industrial Relations Act, which it falls under, and noted that, in sexual harassment, the course of conduct is not a requirement.
It pointed out that the company failed to abide by the Equal Treatment in Employment Regulations, which state that it is “... the duty of the employer to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace, in access to employment, vocational training and promotion”.
Sexual harassment is degrading and demeaning and, more often than not, the victims feel ashamed to speak out about it and to report such behaviour.
Thus, the perpetrator keeps on with his sexually demeaning ways to the detriment of present and future victims.
Ann Marie Mangion is a lawyer specialising in family and child law.