Lawyers say they understand the widespread disagreement over sexual harassment because the boundaries of appropriate behaviour have shifted
Misunderstandings and differing opinions are exposed in a new documentary, reports Serina Sandhu
Ask two people if they know what sexual harassment is and there will probably be two very different responses. Ask a group of 20 and the disagreements and confusion are only likely to become more heated. It’s a discussion that can divide the generations, the sexes, anyone in fact.
In some ways this is remarkable, given all the publicity surrounding the Harvey Weinstein scandal, as well as media coverage of other high-profile claims such as the Ted Baker “forced hugging” complaints.
Yet the debate sparked by the #MeToo movement of what behaviour is unacceptable and illegal – particularly regarding what’s appropriate in the workplace – has also highlighted misconceptions and ambiguity surrounding the law.
Sexual harassment: What is the law?
“Sexual harassment is unwanted conduct of a sexual nature,” according to guidance from The Advisory, Conciliation and Arbitration Service (Acas).
“It has the purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
“Something can still be considered sexual harassment even if the alleged harasser didn’t mean for it to be.”
It can happen in any number of ways, says Acas, including “written or verbal comments of a sexual nature, such as remarks about an employee’s appearance, questions about their sex life or offensive jokes; displaying pornographic or explicit images; emails with content of a sexual nature; unwanted physical contact and touching.”
The widespread extent of this is examined in a new BBC Three documentary, Is This Sexual Harassment?; the programme revolves around a panel 18- to 26-year-olds who are shown a specially made drama about the working relationship of Ryan and Cat, co-workers in a bar. The film ends with Cat accusing Ryan of sexual harassment in an employment tribunal.
The panel is asked to discuss what it sees – and it’s giving little away to say that there’s no consensus.
In one scene Cat is filmed removing Ryan’s hand from her waist during a staff event. One of the male viewers says it is a “massive indicator” that Ryan should not pursue Cat.
But another answers quite differently, saying it’s “not fair to take that as an explicit sign that she was saying no”.
In another scene, Ryan is seen trying to kiss Cat. Later the group is asked whether she should be offended by his actions.
One woman says she feels sorry for rejected Ryan. One states she would be offended if she were in the same situation. But another suggests women need to take more responsibility in speaking up if they are uncomfortable.
“We all say we want to be equal to men. Why are we not allowing that to happen?” she asks. “Why are we not standing up for ourselves? Can we not point the finger at ourselves?”
As they – and viewers at home – watch the drama unfold, they also hear real-life stories of sexual harassment and are given the legal definition of sexual harassment. Some change their minds, though the debate continues.
An employment solicitor, Rhian Radia, says she understands the disagreement. As a specialist in sexual discrimination and harassment, she sees it on a daily basis. Behaviours that were possibly tolerated a few years ago are not being tolerated by employers now, in the post #MeToo era,” Radia, who is head of employment law at Vardags, tells i. “The boundaries have shifted.”
The legal test for sexual harassment is “quite subjective”, she explains. “What might cross the line for one person at work is going to be different for the next person. Everyone feels differently about where those limits are. That in itself creates a lot of confusion.”
She has heard cases of senior men getting away with offences at work as they are deemed “untouchable” but adds that companies “are not protecting such powerful men they were protecting before”.
‘Not a minefield’
Monica Atwal, managing partner at Clarkslegal, argues that the issue should not be a minefield.
“Harassment is fundamentally a manifestation of power relations,” she says.
“It occurs when there is a lack of power coupled with an abuse of position, when individuals feel they are in vulnerable and insecure job roles, that their colleagues cannot relate or understand them and fail to respect them.
“Harassment occurs when there is a culture of accepted banter, belittlement and a lack of visible, instant support to say stop and nip matters in the bud.”
Advice: What should victims do?
Employment lawyers advise anyone who thinks they might be a victim to speak up sooner rather than later.
“There are strict time limits, which a lot of people don’t realise,” says Rhian Radia. “Somebody only has three months, broadly.”
Lawyers suggest noting down the facts before taking their case to their HR team, where they can raise issues formally or informally.
Employees should agree with HR what the next steps should be, says Monica Atwal, and have decisions confirmed in an email.
In one powerful part of the documentary, a woman who has taken part in the social experiment says women need more confidence in confronting men if they feel uncomfortable.
“You can tell me I’m beautiful, you can say my hair is nice and you can tell me my perfume smells nice, but don’t sexualise me and don’t make me an object,” she says.
At the end of the programme, a barrister offers the group the definition of sexual harassment and a verdict on whether Ryan’s behaviour towards Cat would fall into that category.
The decision is surprising for some. They admit they don’t know the rules about workplace behaviour. Others confess they have “learned a real lesson”. Many viewers may feel the same.
‘Is This Sexual Harassment?’ is available on BBC Three via iPlayer from 10am on Sunday