NCJ Number
158595
Journal
Modern Law Review Limited Volume: 58 Issue: 3 Dated: (May 1995) Pages: 343-363
Date Published
1995
Length
21 pages
Annotation
This article examines the British legal foundations for civil claims in which a plaintiff complains of sexual harassment.
Abstract
The authors first consider the current law, which penalizes harassment that amounts to an assault and then considers issues that complicate the determination of what behavior should be considered unacceptable, particularly the role of objectivity in determining standards of behavior and the nature and relevance of consent. The authors contend that the discrimination foundation for claims of sexual harassment may not be the most appropriate legal base, because sexual harassment does not necessarily involve any disparate treatment of the sexes; it concerns the inappropriate use of sexuality, regardless of the victim's gender. The fundamental focus of discrimination law has been to provide redress when injury has occurred to a person because of some victim characteristic. The authors argue that issues of differential treatment are irrelevant in sexual harassment claims, because the injury derives from the bullying nature of the harasser's behavior, which exploits the sexual sensitivities of the victim. This means that such behavior should more properly be addressed by acknowledging that sexual harassment is unacceptable behavior per se, regardless of whether the victim has been treated differently from a member of the opposite gender. Sexual harassment should thus be handled as a tort or crime regardless of issues of disparate treatment. In the employment context, sexual harassment would remain an employment offense, but the complainant would no longer be required to prove that gender discrimination has occurred. 114 footnotes