This article first appeared in the Sunday Business Post on 12 November 2017.
Office romance or sexual harassment?
In recent weeks, the complex legality of defining sexual harassment has come into sharp focus. The debate has been sparked by claims of sexual harassment stretching from Hollywood heavyweights to the halls of Westminster. The social media campaign #MeToo, where individuals are sharing their own experience of sexual harassment, has also trended globally. Irish law defines sexual harassment as “unwanted verbal, non-verbal or physical conduct of a sexual nature”. But exactly when does seemingly “harmless” workplace banter or an “innocent” flirtation fall foul of this definition? At what point does that “office romance” or “horseplay” stray into the kind of territory that warrants action by Irish employers, and presents a PR nightmare for businesses with significant reputational and economic consequences?
The cultural tide
Certainly, the tide seems to be turning in terms of which conduct is or is not appropriate in a workplace. The more traditionalist Mad Men days of Don Draper have gone, and France is even considering going so far as to ban wolf-whistling on the street to address its perceived “macho” culture. An employer’s mind-set must keep pace with these contemporary developments. Given our digital workplace, the potential scope for sexual harassment is wider than ever before. Emails, WhatsApp and various social media platforms are all fertile ground for what may be perceived as a throwaway comment to swiftly grow into allegations of sexual harassment. And as can be seen from the Harvey Weinstein scandal, an allegation by one employee may open the floodgates for more.
The Irish perspective
The definition of sexual harassment within the Employment Equality Acts is exceptionally broad, ranging from spoken words and gestures to the circulation of written words or pictures. Provided that the conduct is unwanted, persistent and has the effect of violating a person’s dignity or creating an offensive environment, it is covered by the definition. A key issue in assessing whether conduct amounts to sexual harassment is to consider whether it was wanted or not. On this basis, a distinction can be made between “friendly behaviour” which is welcome and mutual, and conduct that is unwelcome and makes the recipient feel uncomfortable. It is important to recognise that what might seem friendly to one employee may be offensive to another. As such, this area of law is rooted in subjectivity.
Advice for employers
Irish law requires an employer to be able to show that it took “reasonably practicable” steps to prevent sexual harassment or to reverse its effects. But how do we define “reasonable”? Recent court cases have demonstrated that the absence of an anti-harassment policy can be fatal to an employer’s defence that it took such reasonable measures, even where an investigation was undertaken. In addition to ensuring that such a policy is in place, easily available, regularly reviewed and prominently displayed, the courts have emphasised the need to ensure that a company’s management is trained to deal with harassment promptly and confidentially, and to recognise its manifestations.
Ironically, the extraordinary allegations currently shaking Hollywood to the core could well form the basis of a movie script in years to come. But in real life, there is a clear picture forming of a long-overdue cultural awakening, and a sense that what may once have been regarded as acceptable workplace conduct should no longer be tolerated by employers. In circumstances where the scrutiny of such conduct is not just limited to the office, but extends to include conduct at the company Christmas party, as well as employee posts on social media, employers are advised to ensure that their anti-harassment policy is comprehensive, up to date, communicated clearly to staff - and adhered to.
For further information on this topic or other Employment matters, please contact Ailbhe Dennehy, Senior Associate or your usual A&L Goodbody’s Employment Group contact.