By Dr. Rebecca Mercieca – Senior Associate
Standing up to sexual harassment at the work place, and moreover reporting it might be one of the hardest things for an employee to do at the workplace primarily because the unwelcomed behaviour comes from a colleague in a professional sphere.
Whether coming from a superior or not, attempting to shrug it off and dismissing it as a harmless flirtatious act might seem like the easiest way to handle it, especially at the office, often in an effort to avoid an uncomfortable conversation with a superior or Human Resources.
Although prohibited under Maltese law, uncertainty about what actually constitutes sexual harassment, who one should report it to, not wanting to seem like a drama queen, and worrying about all the repercussions which circle reporting sexual harassment are among the reasons which employees easily find when seeking to justify the reason for failing to report the harassment they face occasionally, and possibly daily at their place of work.
So, what is sexual harassment ?
This form of harassment may take different forms; being physical acts, words or gestures, and also displays of sexual material. The essential element which constitutes sexual harassment is that the sexual conduct in question is unwelcomed by the victim.
It is not about a close friendship with a colleague, but the unnecessary and unwelcomed familiarity with a colleague, the suggestive jokes or comments, as well as unwelcome physical contact such as touching, hugging or kissing. It is indeed qualified as sexual harassment, unless it is sexual behaviour between employees in romantic, sexual or even mutual flirtatious relationships.
It is immaterial that the behaviour may not offend other colleagues or that it has been accepted at the work environment in the past. Indeed an employee might even feel sexually harassed following a romantic relationship break-down, where one who continues to manifest acts of a sexual nature directed at an ex-partner at the office, and such if it is unwelcome by the person against who it is directed, the victim.
A quick google search of the term ‘sexual harassment’ depicts countless images of a women sitting at a desk and a male colleague rubbing her shoulders or making physical contact with her in any way. These images are what have easily described the term sexual harassment in images, however sexual harassment is way be more than that. Practical examples include:
- subjecting the victim to an act of physical intimacy,
- requesting sexual favours;
- unwanted invitations to go out on dates or requests for sexual interaction;
- intrusive questions about an employee’s private life or body;
- insults or taunts based on one’s sex;
- sexually explicit messages;
- humiliating, offensive, and intimidating acts or remarks;
- subjecting the victim to any act of with sexual connotations, images and/or behaviour which would also be an offence under the criminal law, such as physical sexual assault, indecent exposure, and obscene or pornographic communications.
One may think that his/her conduct is welcome, or at least perceived as flattering and inoffensive towards the victim. In turn, the victim might not say anything back, and at times the victim might end up even going along with the unwanted behaviour to avoid awkward confrontation or exclusion at work, with the office ending up being a hostile or even toxic place one frequents every day.
Employers have a responsibility towards their employees to ensure that sexual behaviour between employees, even if reciprocated does not create an unpleasant workplace for other employees.
At times met by a shrug from the employer, especially within small to medium sized businesses and firms run without a human resources team, and all in an effort to keep the feeling of a peaceful, drama-free working environment, the office might end up being regarded as a sexually hostile space for the staff members, both the victims of sexual harassment, as well as to those who find themselves sharing an office with colleagues who reciprocate sexual behaviour towards one another.
The best preventive measure an employer may take to offer a safe working-environment, is the adoption of a sexual harassment policy, clearly underlining procedures which victims should follow in order to make complaints, as well as guidelines which enable the employer to handle such complaints.
It is as critical for the employer to make sure that the sexual harassment policy is clearly understood by all the employees and that no tolerance is allowed at poking fun at the policy.