Approaches to and Remedies under Sexual Harassment Law

Laws that protect workers from sexual harassment conceive of sexual harassment in a number of different ways: as discrimination based on sex, as an offense against dignity, or as an issue of health and safety in the workplace.

The discrimination conception of sexual harassment law reflects an understanding that such law is designed to protect a vulnerable group—in this case mainly women—that is the target of inappropriate sexual behavior in the workplace. From this viewpoint, laws prohibiting sexual harassment must be implemented so as to remove an obstacle to the integration of women in the workforce. United States and European Union sexual harassment law and policy is firmly rooted in this understanding of sexual harassment. In fact, the development of law in these jurisdictions has been strongly linked with movements to address other forms of discrimination against vulnerable groups, e.g., race discrimination. Many countries have adopted the anti-discrimination model of sexual harassment law in an attempt to protect the rights of women in the workplace. The discussion of civil law in this section includes examples of anti-discrimination law targeting sexual harassment.

The dignity and health and safety perspectives on sexual harassment law, on the other hand, mean placing sexual harassment within the context of legal protections for all workers, not just those who are vulnerable by virtue of membership in a particular social group. These protections may take the form of labor law, tort law or employment contract provisions. In many European countries, sexual harassment law appears to incorporate the discrimination perspective (the result of early laws imitating the U.S. model), the dignity perspective and the health and safety perspective. In Europe, there is an increasing focus on behaviors described as "moral harassment,"  "mobbing," or "workplace bullying," all of which subordinate concern about the integration of women in the workforce to concern about the rights for all workers. Adapted from Gabrielle S. Friedman and James Q. Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, Columbia Journal of European Law, Vol. 9, 241 (Spring 2003). By de-emphasizing the issue of gender, this approach moves harassment law away from the discrimination and violence against women toward broader questions of individual dignity and health and safety on the job. One positive result of such an approach is that it may be more inclusive of a wide variety of harassment claims, e.g. harassment claims made by a victim against an individual of the same gender. However, this approach shifts the focus away from an underlying cause of harassment, the subordination of women to men in the workplace. The moral harassment or workplace bullying concept often also includes a health component as well: degrading treatment or "psychoterror" in the workplace is regulated in part due to the effects of such treatment on the mental health of workers.

The three dominant conceptions of sexual harassment—a form of discrimination, an offense against dignity and a health and safety violation—need not be understood as exclusive approaches to sexual harassment law. The following are examples of approaches to sexual harassment law which incorporate concern for discrimination, dignity and health: 

• The definition of sexual harassment in all European Union Member States must comply with European Union Directive 2006/54/EC by 15 August 2008. Directive 2006/54/EC is a recast directive that coalesces previous directives and caselaw on equal treatment for women and men in employment. The directive characterizes sexual harassment as both a form of sex discrimination and a violation of dignity in the workplace. 
• Currently, the French Penal Code prohibits both "sexual harassment" and "moral harassment" which is defined as a violation of dignity, a danger to health, and a form of discrimination. The prohibited conduct does not necessarily have to be related to the gender of the victim. From Penal Code of the Republic of France, Articles 222-33 and 222-33-2. 

Remedies for sexual harassment cases will vary based on the approach a country takes towards sexual harassment. This may include civil remedies under discrimination laws governing the workplace and under labor laws, as well as criminal remedies where sexual harassment is criminalized or the acts concerned amount to criminal sexual assault.