When I started AAPC, I knew it would mean hours, days, weeks, and months of anguishing and infuriating research on every single aspect of the law on sexual harassment. I would have to find relevant case-law, relevant academic writings, relevant policies, relevant activist positions, so on and so forth. I would also have to pour over several hundred stories of pain, suffering, trauma, and retaliation. I also expected to read of a few victories, where justice was done and the survivors who stood up and spoke out were validated through a re-traumatising legal process. This I was prepared for.
What I was less prepared for was the level of frustration I would experience with the law itself! Time and again, I found the language of the very definition of 'sexual harassment' grating on my being. Across international organisations, corporations, and indeed even countries, the only standardised part of the definition includes some permutation of the phrase "any conduct or behaviour that is unwelcome...". This subjective standard causes several layers of problems that essentially run afoul of a survivor-centered approach. Firstly, it places on the complainant/ target the burden of demonstrating that the conduct they reported and formed the basis of their complaint was not in fact welcomed by them. Secondly, that they conveyed such unwelcomeness to the perpetrator clearly and unambiguously. Finally, that both these aspects can be proven in a court of law with clear and consistent evidence on a balance of probabilities. Together these form a significant part of the deterrent effect inherent to the legal process.
After suppressing my gut instinct to delve into this peculiar phrasing for months, being a sole founder of a global legal start-up with way too many priorities to begin with, I finally could not move past it. Over the next few months, I started tracking down the origin, import, and continued use of this phrase. I discovered that the genesis of the phraseology was from American jurisprudence (which at the time of its coinage was a revolutionary step towards creating safe workplaces for women). Over several inter-disciplinary scholarly papers, from behavioral psychologists, data analysts, legal practitioners and academics, I became convinced of the need for it to be removed and replaced with some alternative, more appropriate wording. Unfortunately, I have not gotten far enough to actually propose such alternative definitional language for consideration yet. I hope eventually to critique the validity of its import from American law into international civil service law. More importantly, I intend to put forth arguments on why this dubious standard places an unnecessary and untenable burden on complainants within the legal regime of international organisations. Finally, I hope to analyse the impact of this standard on UN policies and on the judicial assessment of complaints before the UN and ILO administrative tribunals.
Ultimately though, this is where I now stand - once a claim of sexual harassment has been brought, the burden of proving the 'welcomeness' of the conduct should lie with the alleged perpetrator, who should be required to prove that the alleged conduct was a result of their belief that it was welcome, provided the very occurrence of the conduct is not itself in dispute. This would be akin to most sexual consent laws, where increasingly legal standards are shifting towards enthusiastic consent.
Before I get to fully explicating my positions, I decided to share those readings that have most informed my views in advance in order to welcome your perspective on the topic. Have a read:
- Did She Ask For It: The Unwelcome Requirement in Sexual Harassment Cases - Ann C. Juliano, 77 Cornell L. Rev. 1558 (1992)
- By Invitation Only: The Proof of Welcomeness in Sexual Harassment Cases - Mary F. Radford, 72 N.C. L. Rev. 499 (1994)
- Inviting Sexual Harassment: The Absurdity of the Welcomeness Requirement in Sexual Harassment Law - Casey J. Wood, 38 Brandeis L.J. 423 (2000)
- Not Quite Rights: How the Unwelcomeness Standard in Sexual Harassment Law Undermines Title VII's Transformative Potential - Grace S. Ho, Yale Journal of Law & Feminism: Vol. 20: Iss. 1, Article 5 (2008)
- The Unwelcome Requirement in Sexual Harassment: Choosing a Perspective and Incorporating the Effect of Supervisor-Subordinate Relations - Larsa K. Ramsini, 55 Wm. Mary L. Rev., Vol. 55, Issue 5, Art. 7 (2014)
All of these publications are also, of course, American. While the process of legal updating in US maybe slow in relation, specifically, to gendered laws, these pieces are telling of the growing frustration with the continued use and application of the existing standard in court rooms with predominantly male judges and juries.
Internationally, it would seem that the trend of the law - and hopefully with it the arc of justice - has begun to bend towards discarding the utterly dated and irrelevant 'unwelcome' legal standard. The ILO Violence and Harassment Convention 2019 (No. 190), also called ILO Convention C190, has presciently moved in this direction by using the term "unacceptable" which mandates a more objective inquiry of the conduct than the subjective 'unwelcomeness' standard. In Article 1, the definitions for the purpose of the Convention state:
- (a) the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;
- (b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment
The only domestic harassment law to my knowledge that actually adopts this approach, i.e., requires the accused to prove that their conduct was reasonable, is the recently updated sexual harassment act in Singapore. Have a look at the 'acceptable defence' provisions under Sections 2 through 7 of Protection from Harassment Act 2019. Hopefully, more States will follow suit, prompting employment lawyers to advice employers of all sizes and spread to discard the old subjective test in favour of something more appropriate, maybe along the lines of the ILO Convention C190. The aim as always should be the principle of do-no-harm and to keep the survivor at the center of all policy considerations.