Too close for comfort
Sara Hinchliffe finds herself 'worried, troubled, tormented' by the plethora of workplace codes on sexual harassment
Work is a dangerous place these days - and I'm not talking about industrial accidents. In a high-profile sexual harassment case in January, City banker Kay Swinburne won a substantial award for having to resign from the 'hostile environment' at Deutsche Bank. A top law firm is working on the first British 'love contract' for an unnamed medical company - where employees will have to tell their bosses if they are having a relationship with a colleague, so the company can avoid allegations of sexual harassment. According to the Home Office report Living Without Fear, the government is reviewing a package of 60 recommendations on sexual harassment from the Equal Opportunities Commission, and is also reviewing the effectiveness of the 1997 Protection from Harassment Act. The Trades Union Congress (TUC) has demanded that the government introduce a specific new law against sexual harassment, drawing on an official EC definition and series of recommendations.
The consensus seems to be that not enough is being done to prevent people - especially women - falling victim to workplace harassment. But under existing legislation, employers are legally responsible for their employees' behaviour: if they do not take such steps as are 'reasonably practicable' to prevent harassment at work they are liable under a wide range of legislation, including the Sex Discrimination Act, the Race Relations Act, the Disability Discrimination Act, health and safety law, and a variety of pieces of employment protection legislation. No public sector organisation is without its own anti-harassment policy or statement, and these are becoming increasingly common in the private sector. These informal policies carry at least as much scope for regulating workplace behaviour as any law could, and already have severe consequences for those accused of harassment.
But anti-harassment policies are not there to prevent such abusive behaviour as sexual violence, assault or rape. These are crimes, subject to criminal penalties in the courts. Sexual harassment policies are there to police behaviour which is not illegal - and sometimes they focus on the most trivial forms of behaviour. Much of Kay Swinburne's case rested on the basis that 'one of the managers frequently referred to women colleagues as "hot totty", "birds" or "chicks"', and that her colleagues were encouraged to laugh at her. Swinburne's QC summed up her manager's crime: 'he would say things in order to get a rise out of her. She reacted with righteous indignation and he enjoyed that.' One might be forgiven for assuming that an investment banker earning £300 000 a year might be tough enough to deal with this - admittedly juvenile - sort of behaviour, recognising that it's tough at the top. Not any more - Deutsche Bank will need to monitor its employees' behaviour much more closely in future, to ensure words such as 'chick' cross nobody's lips.
Why has this kind of office banter become the focus of such controversy and regulation? Sexual harassment has often been understood as an expression of a clear abuse of power in the workplace - bosses demanding sex under threat of the sack. We all know the stereotype of the lecherous boss, trying to put his hand up his secretary's skirt and demanding sexual favours. But now, policy after policy is careful to remind us that it can happen to anybody: 'It can occur between workers on the same grade, or where a member of the public harasses a worker at her workplace.' (Manufacturing, Science and Finance Union) We are even provided with helpful examples. According to a TUC Women's conference survey, 'the sexual harassment took the form of the men constantly teasing and making coarse remarks to C [a woman postal worker], and picking arguments with her'.
The sexual harassment policies developed today assume that abuse is everywhere, and imply that all working relationships are potentially harassing. The lists of proscribed behaviour include almost any human interaction, with men - and in particular male sexual interest - being automatically suspect. Anything that can make people at work feel 'uncomfortable' may be harassment. It is interesting that, despite the 'informal' nature of harassment policies, the same phrases crop up again and again, as if they had been dictated by a central advisory body. Asking a woman out ('any sexual advance, request for sexual favours'), giving her an appreciative look or compliment ('suggestive looks or remarks'), a touch on the arm or shoulder ('unwanted physical contact') may be construed as harassment. Not wanting to socialise with colleagues or not inviting them to lunch ('exclusion') may be harassment.
You may harass a disabled person by offering them help ('giving uninvited, patronising or unnecessary assistance'). You may be guilty of academic bullying if you argue your case forcefully ('asserting a position of intellectual superiority in an aggressive, abusive or offensive manner') or if you suggest students' work is not up to scratch ('threats of academic failure'). If you are a manager and you criticise your staff's performance or insist on deadlines, you may be guilty of bullying ('setting arbitrary or unreasonable workloads or deadlines, inappropriate or derogatory remarks in connection with performance'). Offering any form of criticism and even being inconsiderate may be actionable ('conduct - aggressive or otherwise - which over a period of time undermines an individual's self-confidence').
What happens if you are accused of harassment? Very few policies offer any advice for those on that end. The Association of University Teachers (AUT) is one exception - it advises members in this position to 'reflect on [your] behaviour and the possibility that you might be at fault, whether consciously or not'. For the AUT, as for all harassment policies, 'what counts is the perception of the person complaining of harassment'. It is striking that the range of harassment rules insist that the 'perpetrator's' intention is irrelevant - all that matters is that they made somebody else uncomfortable. Unison puts it like this: 'harassment is unwanted and offensive. Whether it is intentional is irrelevant.' To the harassment advisers, innocent intent is meaningless. Individuals are to be held to account for the perception of their words or actions. Natural justice - where people are only held to account for voluntary, intentional acts - is ignored.
Harassment is invariably a disciplinary offence. If you are 'convicted', management can apply the whole range of sanctions up to dismissal. Many employers record all accusations of harassment; even where cases are unproven. According to the University of Southampton, 'even if no prima facie case is made or the allegation is unproven, a confidential record...will be made by the head of department'. And because employers are legally responsible for their employees' actions, managers are encouraged to intervene in cases where no complaint has been made and even without the knowledge of the presumed victim - 'your section or unit heads will normally respect your wishes as to whether the matter should be dealt with by informal means but may nevertheless decide (in exceptional circumstances) to apply the disciplinary procedure' (University of Sussex).
One might hold out hope on the basis that surely we're not all so pathetic as to rush to complain of harassment over behaviour which is a part of working life. Perhaps so. But even if you do not personally stand accused of harassment, the very existence of the policies has consequences. When jokes, human contact, flirting and 'saying things to get a rise' are outlawed as potentially abusive behaviour, this can only create an uptight and sterile working environment in which everybody is forced to think twice before saying anything. Office banter and spontaneous chat are the substance of building relationships with our colleagues, and the very things that make working enjoyable and worthwhile. Do we really want to sacrifice this for the security of a 'comfortable' working environment?
Reproduced from LM issue 128, March 2000