The burden of preventing sexual harassment in the workplace rests primarily on the employer. In the United States, Canada, South Africa, India and in some European Union Member States, employers are required or encouraged by law to take steps to prevent and correct sexual harassment in the workplace. These steps include the following:
European Union Approach
The EU Code of Practice on Measures to Combat Sexual Harassment adopted in 1992 recognizes that "a procedure to deal with complaints of sexual harassment should be regarded as only one component of a strategy to deal with the problem. The prime objective should be to change behavior and attitudes, to seek to ensure the prevention of sexual harassment." From EU Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Official Journal L 049, 1-8 (24 February 1992).
United States Approach
In regulations adopted under Title VII of the Civil Rights Act of 1964, the United States Equal Employment Opportunity Commission has stated that "[p]revention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned." From 29 Code of Federal Regulations Ch. XIV (7-1-00 Edition), Section 1604.11 Sexual Harassment.
United States law also allows employers to establish an affirmative defense to certain sexual harassment claims in part by taking the steps outlined above. In particular, an employer may establish an affirmative defense to an allegation of harassment by a supervisor that creates an unlawful hostile environment by demonstrating that (1) "the employer exercised reasonable care to prevent and correct promptly any harassment" and (2) that "the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise". See Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Farragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); and Law and Policy: Domestic Laws. An employer's establishment and implementation of a sexual harassment policy and complaint, investigation and training procedures can be considered evidence that a employer has exercised its duty of preventive care. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors No. 915.002, 11-18 (June 18, 1999).
Canada's Approach
Division XV.1 of the Canadian Labour Code requires employers to establish a policy statement on sexual harassment which must include the following:
Sweden's Approach
Under Sweden's Equal Opportunities Act, 1991, Section 6, employers have a duty to prevent sexual harassment from occurring in the workplace. In addition to giving employers a duty to prevent sexual harassment from occurring, Swedish law also requires employers to investigate the incidence of sexual harassment in their workplaces. From Sweden, Equal Opportunities Act, 1991, Section 22.
Germany's Approach
In Germany, the employer has a duty of care to make sure the employee does not get hurt at work. Within this duty of care, the employer also has a duty to guarantee employees will not experience harassment at work. From Friedman and Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, 9 Colum. J. Eur. L. 241, 255 Spring 2003.
France's Approach
The French Labor Code requires employers to provide an employee handbook forbidding moral harassment. From France, Labor Code (Code de Travail), Art. 122-34 and 230-2; Friedman and Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, 9 Colum. J. Eur. L. 241, 261 Spring 2003.
South Africa's Approach
In South Africa, the Employment Equity Act requires that employers create and implement an employment equity plan which addresses sexual harassment. From Employment Equity Act 55, 1998 Section 20(1).
United Kingdom Approach
In the United Kingdom, the Employment Appeal Tribunal in Caniffe v. East Riding of Yorkshire Council (2000, IRLR 555, EAT) decided that the proper approach lower tribunals should take when deciding on employer liability for sexual harassment was firstly, to identify whether any preventative steps had been taken by the employer and having done so, to go on, secondly, to consider what further steps the employer could have taken which were reasonably practicable. This decision was made in a sexual harassment and assault case in which the lower tribunal held that "by having disciplinary grievance and personal harassment policies in place, which had been drawn to the attention of all employees, the Council had discharged its liability as it had taken all practicable and reasonable steps possible to prevent sexual harassment happening at work." The lower tribunal had not considered what further steps the Council could have taken. Thus, in the United Kingdom, employers may be required to take reasonable steps to prevent harassment beyond establishing a grievance and harassment policy.
Suggestions for Employer Action
Requiring or encouraging employers to take measures to prevent sexual harassment is one way in which a government can demonstrate that it is taking "appropriate measures to eliminate discrimination against women by any person, organization or enterprise" as is required under the Convention on the Elimination of all Forms of Discrimination Against Women.
Many governments and non-governmental organizations have recommended that specific sexual harassment policies, trainings and complaint procedures be approved and implemented by employers.
In general these recommendations have focused on the following principal elements: 1) A Statement of Policy; 2) Definition of Harassment and Establishment of a Non-retaliation Policy, 3) Prevention Procedures/Training, 4) Designated Complaints Committee or Officer, 5) Informal Complaint or Advice Mechanisms, 6) Complaint Procedures, 7) Investigation Procedures, 8) Disciplinary Procedures, and 9) Measures to Correct the Effects of Harassment.
Please note that these recommendations must be revised to reflect applicable national and local law before they could be implemented by an employer.
Adapted from EU Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Official Journal L 049, 1-8 (24 February 1992); EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by supervisors No. 915.002, 11-18 (June 18, 1999); Indian National Commission for Women, Code of Conduct for Workplace adopted in accordance with the recent Supreme Court Judgment on "Sexual Harassment of Women at the Work Place" Vishaka & others vs. State of Rajasthan and others (AIR 1997 SC 3011)(link to Code appears on bottom left of page); South African National Economic Development and Labour Council, Code of Good Practice on the Handling of Sexual Harassment Cases; Canadian Human Rights Commission in cooperation with Human Resources Development Canada and Status of Women, Anti-Harassment Policies for the Workplace: An Employer's Guide (December 2001); and ABA, Mark I. Schickman, Sexual Harassment: The Employer's Role in Prevention.