Legal history reveals that even in the 1980s, it wasn’t “OK” to sexually harass women

The law has been clear for 30 years. 

NS

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In March 2016, just after I was selected to stand in the Greater London Assembly elections for the fledgling Women’s Equality Party, I was invited to address the Million Women Rise march to end male violence against women and girls. Thrilled at the prospect of giving a speech in Trafalgar Square, I quickly accepted, despite feeling like an imposter because I’ve never practised criminal law. 

But was I? Reflecting, I realised that in 17 years as an employment and equalities barrister, among hundreds of sexual harassment cases, I had advised on three workplace rapes. I grew concerned that mainstream culture does not seem to understand that many acts of sexual harassment which lead to Employment Tribunal claims are also criminal acts of sexual assault. Further, many commentators do not seem to understand that all workplace sexual harassment is serious misconduct. 

In the media, a lot of discussion has focused on rating the severity of individual acts. Are women who speak out against the sexist “joke”, or the unwanted hand on the knee, fragile snowflakes making a fuss over a bit of slap and tickle? Do they steal the limelight from rape survivors? Are we watching a witch-hunt of gallant flirts around parliament?

Michael Fallon apologised for groping the journalist Julia Hartley-Brewer and the next day resigned as defence secretary, saying that while many accusations were false, his behaviour had “fallen below the high standards” expected of a minister. When he resigned, he told the BBC: “The culture has changed over the years, what might have been acceptable 15, ten years ago is clearly not acceptable now.”

Working practices and attitudes in parliament, where hundreds of people work every day, appear to be decades behind other businesses and public bodies with equivalent staff numbers.

In my professional experience, the vast majority of working men from all walks of life have no difficulty avoiding sexually harassing colleagues. The best lay definition I’ve come across was from a refuse collector who told me he had given his junior colleague a formal warning for “being a lech”.

Legally, sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating the woman’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The current statutory definition derives from a 2002 EU Directive but protection against harassment has a longer legal history. 

For those of us who were born and have always worked under the protections of equality law, it’s hard to imagine that prior to the Equal Pay Act 1970 and the Sex Discrimination Act 1975, it was lawful and normal to pay a woman less than a man for doing the same job. Then, there was no legal protection against sexual harassment at work. Older women who worked nearly all describe patronising, vulgar, sexist remarks, routine bum-pinches, and being disempowered by their precarious employment status. The Sex Discrimination Act 1975 triggered a major cultural change, which did not pass by even the most traditional of men.

In 1979, the legal scholar Catharine Mackinnon published her seminal text “Sexual Harassment of Working Women”, arguing that sexual harassment was sex discrimination. Her analysis influenced the early case law interpreting the Sex Discrimination Act 1975. In 1986, in Porcelli v Strathclyde Regional Council, the courts made clear that sexual harassment through sexist bullying was an unlawful form of direct sex discrimination.

Mrs Porcelli was protected from unpleasant conduct by her colleagues with sexual overtones, including deliberately brushing against her body and making sexually suggestive remarks, because it was less favourable treatment on grounds of her sex. The court reasoned they would not have treated an equally-disliked man in the same way. Using quaint language, the court described sexual harassment as a man using a “sexual sword” to attack a woman.

For the last 30 years, the British courts have therefore protected working women from sexist bullying in words, groping and propositioning, as well as the most serious criminal sexual assaults, through case law based on the Sex Discrimination Act 1975. So, legally, things were not so different ten, 15, or 30 years ago, though standard practice, enforcement and cultural attitudes are another matter.

Employment law lets women recover monetary compensation from employers which fail to protect them from sexual harassment by male colleagues. The risk of being sued and having to pay compensation – and maybe a wish to support women workers – led most large employers to draft dignity at work and disciplinary policies in the 1980s and 1990s. More than 15 years ago, it was clear, at least on paper, that sexual harassment was unacceptable. Far from setting an example, parliament lags behind both big business and the public sector with its casual attitude.

The serious workplace misconduct which constitutes sexual harassment is compensated on a scale related to the woman’s upset feelings (which can include psychiatric injury) plus her financial loss. The legal system recognises that sexist “jokes”, bullying and harassing – which some commentators seem to regard as trivial – can and do wreck women’s incomes, careers and, sometimes, mental health, as can serious sexual assault and rape.

I am relieved that my work has not yet involved me in a murder case, but I now see clearly that all workplace sexual harassment is male violence against women and it always has been. It is totally different from how a flirtatious man tries to please and entertain a woman, responsive to her cues.

Right now, my biggest concern is the most vulnerable, disempowered and silenced women in Parliament. It is notable that the brave women who first spoke out publicly about their experiences of sexual harassment by MPs and prominent party political activists are nearly all privileged and powerful, whether by age, political seniority or standing, race, or class background. Even they are now experiencing a cruel misogynistic backlash. Alice Bailey, a former House of Commons bar manager, has now come forward to allege a campaign of obnoxious harassment by MPs. I hope that Westminster’s remaining bar staff, cleaners, cooks and waitresses, working in the most insecure, unstable and worst-paid roles, never get sexually harassed at work, but Bailey’s story and my professional experience make me doubt it.

Harini Iyengar is an employment and equalities barrister and spokeswoman for the Women’s Equality Party