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Sexual Discrimination

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Sexual Harassment

Sexual Harassment is defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which occurs, with the effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or an offensive environment.

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What sort of conduct are we talking about here? One prime example would be constant innuendos or remarks about someone’s figure or physical contact like deliberately brushing up to someone, making contact with someone deliberately to embarrass them.

In Sexual Harassment cases, they do not have to be continuous acts. It could be a one off occasion. One of the typical situations you get is with the Christmas party when your MD or Senior Management makes an unwanted pass at his Secretary or any female colleague. The important element in that is proving that the circumstances as such the conduct is unwanted and the party knows that the conduct is unwanted. You can get sometimes unusual situations where there has been some form of boyfriend/girlfriend relationship developing and there is a break up and one party claims against the other party that there has been sexual harassment. This is not an unusual circumstance provided that the other party knows that the conduct is unwanted or objectively it is obvious that the conduct is unwanted and that person continues with that conduct. Then they would be guilty of Sexual Harassment in the workplace.

It is the employer’s duty to prevent such conduct in the workplace but provided they have done all they reasonably can to prevent that, then they can run that defence as not being responsible for the conduct because they have done all they could to stop it. What they are effectively saying here is that if the employer has done all they can and such conduct occurs, then provided they properly investigate it, come to a reasonable conclusion based on that investigation, then they have a defence.

What do we mean by unwanted? It certainly means unwelcome or uninvited. Another defence an employer can run is that the conduct was not within the course of employment. Examples of this include what I will refer to as the Police cases where there is an allegation that a Police Officer has visited another female Police Officer off duty and made unwanted advances. The fact that they are both Police Officers does not mean that the employer is liable for the conduct of one because that person is not acting in the course of their employment, they are not on duty they are visiting someone at their home whilst they are off duty.

I am now going to deal with the issue of new legislation which are the Employment Equality Sexual Orientation Regulations 2003. Sexual Orientation is defined as conduct towards person of the same sex or of the opposite sex. It relates to situations where someone treats someone less favourably on the grounds say that they are gay or in the alternative, on the grounds that they are not gay and the person treating them less favourably is gay. This would cover situations where heterosexuals gang up on gay people or a situation where a gay person mistreats a non-gay person.

Because this new law is recent, there are not many cases on this issue yet but it is clear that it is discrimination to treat someone less favourably on the grounds of their own personal sexual preferences.

That completes the section of Sexual Discrimination. I hope it has been useful to you but please remember that I have simplified the law in relation to Sex Discrimination. It is an extremely complex area of law and it is difficult to prove Sex Discrimination because people can provide lots of different reasons for why they are treating someone else differently. It is difficult because in most cases the Tribunals will be faced with an allegation or a series of allegations and will have to look at those allegations and see if they can draw an inference that the reason for that treatment is related to the discrimination.

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