Laura, Elizabeth and Andrew were law student interns, participating in the WS Society Summer Internship programme during August 2018. This article summarises their research and presentation.
On the 15th October 2017, Alyssa Milano tweeted “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet”. The morning after Ms. Milano shared that tweet, she woke up to 55,000 replies and the hashtag ‘Me Too’ trending No 1 on Twitter. A new phenomenon had begun.
This hashtag is still, to this day, trending on social media platforms. It is also mentioned in the news almost daily. In other words, this cannot be categorised as a ‘social media trend’ that will die out any time soon. ‘MeToo’ has shown not only how widespread sexism is, but also how important the internet is in spreading information and creating awareness.
“It has managed to take something that was, at best, a footnote in governmental policy and instead make it a priority for governments and businesses across the globe.”
In particular, the movement has highlighted how rife sexual harassment is within the workplace and consequently, there have been a number of reports detailing suggestions on how to prevent such behaviours. The House of Commons Women and Equalities Committee published a report on exactly that in July of this year.
This report indicated that due to the failing of the Government to acknowledge statistics, the ‘MeToo’ movement was crucial in bringing this discussion to life, and stated, “Surveys commissioned by media and other organisations, of which there was a spate following the emergence of ‘MeToo’, therefore provide valuable insights into prevalence of sexual harassment claims.”
Another report produced in the wake of ‘Me Too’, was the Equality and Human Rights Commission (EHRC) ‘ Turning Tables: Ending sexual harassment at work’, which was published in March 2018. The report collected information via a survey from 1000 employees across various sectors of employment and found that, three-quarters of people have experienced sexual harassment at work.
The report also highlighted the unwillingness in reporting. Around half of the respondents hadn’t reported their experience of harassment to anyone in the workplace. According to the EHRC, obstacles to reporting
“1. The view that raising the issue was useless as the organisation did not take the issue seriously.
2. A belief that alleged perpetrators, particularly senior staff, would be protected.
3. Fear of victimisation.
4. A lack of appropriate reporting procedures.”
Furthermore, the report by the EHRC also stated that there are a few significant gaps in the law. If these gaps were filled, it would strengthen and broaden the rights of employees, and encourage more victims to report their experiences. Ironically, even though the EHRC was established in 2007, sexual harassment as a specific area of focus did not feature in any of the organisation’s annual reports in the decade since its establishment. Even the Legal Director of EHRC, Elizabeth Prochaska acknowledged this, by stating
““All organisations working on this - and I count the EHRC as one of them - were caught off guard, in a sense, by the ‘MeToo’ movement, and simply had been focusing on other issues over the last decade.””
That said, the law currently in place surrounding sexual harassment actually appears rather strong - particularly following the 2010 Equality Act. In fact, the first step which recognised that women were suffering from discrimination based upon their sex in the workplace was the Sex Discrimination Act 1975. Here, harassment could be included as a factor in claims of sexual discrimination but was not an offence in and of itself.
Since 1975, the law has developed exponentially through both legislation and the courts. This had to happen, to reflect the changing dynamics of power that were occurring, and indeed, are still occurring, within the workplace. As a result, the law began to recognise an old problem in a new way; sexual harassment. In this rather grey and personal area of life the judiciary has the independence to formulate an opinion based on the circumstances of individual cases. For example, expanding the definition of the word ‘unwanted’ to also mean ‘uninvited’. Thus, asserting the right that people should not have to make clear that they do not want to be sexually harassed. By allowing this discretion, the context can be closely examined and great regard can be paid to the grey area - after all, no case is ever clear cut.
Notwithstanding that the existing law is fairly strong, employees rarely know their rights and therefore implementation of clear reporting mechanisms seems to be key. The ‘MeToo’ campaign has highlighted the current tensions that exist between individual protections and the corporate interest. Therefore, the law must perform a balancing act between these two, often competing, interests.
It is certainly a very grey and personal area, in which a new method has developed to try and regulate this aspect of life – love contracts. Love contracts, or to give them their official name in the UK, Consensual Relationship Agreements, rose to prominence in the corporate world of the United States. In the U.S. these love contracts are used between the couple and the employer to state that the relationship is consensual and therefore protecting the employer from sexual harassment claims.
As a result of globalisation, this type of consensual agreement seems to be on the rise on this side of the Atlantic. Some Magic Circle law firms have begun introducing them, with Linklaters launching this type of agreement in May of this year. Linklaters believe these types of contracts are “not about prying into personal information, but about acting as a responsible business”.
Love contracts have certainly divided opinion, with their advocates believing that they are crucial in helping to protect businesses and individuals alike from the damage that can arise from sexual harassment in the workplace.
“Their critics on the other hand see love contracts not only as a way of avoiding the ramifications that can occur from instances of sexual harassment but also as an invasion of the right to a private life in the U.K., under Article 8 of the European Convention on Human Rights.”
This potential breach of privacy provisions is a key consideration when considering the introduction of love contracts in the U.K. However, it is also important to consider that the introduction of such agreements could potentially amount to indirect sex discrimination by an employer. Such a policy might provide, for example, that if a relationship does develop between a junior and senior member of staff, the junior member of staff could be asked to move to a different department (or even be dismissed). Statistically, as the junior employee is more likely to be a woman, this course of action may then result in a finding of indirect sex discrimination. Consequently, love contracts on this side of the pond seem to create more problems than they could ever solve.
So, the question remains, what can be done by both the Government and employers to protect against what seems to be the ever growing issue of sexual harassment in the workplace? It seems vital to promote a more open and transparent working environment in which victims of sexual assault feel comfortable enough to come forward and report their experience. A way to implement this is, potentially, the introduction of a mandatory duty on employers which ensures that they put preventative measures in place.
However, this suggestion has been met with varying degrees of support. There are problems identifying what measures should actually be put in place to fulfill this duty. To combat this dilemma, the aforementioned House of Commons report suggested that a code of practice should be published, containing detailed guidance of how to meet this potential mandatory duty.
In fact, a similar system is already in place in Australia, which has had an established code of practice for sexual harassment in the workplace since 2004. Having in place a known and simple procedure for sexual harassment in the workplace is crucial for both parties involved, and the Australian code of practice may be a good model for the UK to follow. The code could set an example for employers, demonstrating to them what it required for a comprehensive and appropriate response to sexual harassment claims.
Lastly, the incentives for a company is a key consideration and is something that is briefly touched upon in the House of Commons report. Currently, claims of sexual harassment do not affect a company’s reputation to the extent to which such claims probably should. Recently, for example, firms such as Baker McKenzie have had to deal with allegations of sexual harassment, but has it really affected their day to day business dealings? Probably not.
“In fact, the only company whose reputation seems to have been damaged by claims of that nature is actually a charity.”
Oxfam received negative coverage due to a sexual scandal, and have consequently reported a dip in their donations. According to the BBC, around 7,000 people stopped making their regular donations. Perhaps, the reason why they have been more negatively affected is due to the impression society has of a charity as opposed to those of a business. So perhaps, looking forward, more of a focus should be placed on putting a company’s reputation on the line in terms of sexual harassment. This is a similar approach to the recent developments in the law with regard to equal pay, where any company with over 250 employees is required to publish pay statistics on their website. Potentially, looking to the future, the introduction of a similar system for sexual harassment would motivate a company to take action to prevent such conduct within the workplace.
The ‘MeToo’ movement has been critical in bringing this topic to the forefront of discussions across the social spectrum. It has raised awareness of how widespread and normalised sexual harassment is within the workplace and has succeeded in allowing victims to be heard. The question though, remains as to how this will impact companies and governments globally. Will the ‘MeToo’ movement be the beginning of a revolution in the corporate world? It certainly appears so.