THE Government's definition of sexual harassment needs to be changed before it becomes law, says the head of the Employment Equality Agency (EEA), Ms Carmel Foley.
The Employment Equality Bill defines sexual harassment as an action or conduct which a "reasonable person" would consider to be "sexually offensive, humiliating or intimidating."
Speaking at a Dublin conference yesterday called Sexual Harassment in the Workplace, Ms Foley said the "reasonable person" test was unacceptable because of different attitudes about what constituted sexual harassment. The Bill is going through its final stages in the Seanad.
The EEA has asked the Minister Mr Taylor, to reword the definition so that the injured party is the arbiter of whether the action or conduct is "offensive, humiliating or intimidating."
She told the conference in Dublin yesterday the "reasonable person test "could be appropriate and straightforward in other areas of law which apply to men and women equally." But it was not appropriate for defining sexual harassment.
"It is not too late to change the text at committee stage in the Seanad," Ms Foley said. "The change would accord with the many Labour Court decisions on sexual harassment and with the definitions used in the European and Irish codes of practice."
The proposed new wording would define sexual harassment as "any act of physical intimacy by B towards A, which A could reasonably consider to be sexually offensive, humiliating or intimidating."
She said the Bill also ignored same sex harassment because under its terms, if person A was a woman then person B was a man, and vice versa. "By same sex I do not mean harassment on the grounds of sexual orientation, which is covered in the part of the Bill which deals with harassment on all of the other grounds of discrimination. The EEA is aware of instances of same sex harassment and it should not be ignored."
The Bill will "clear up the misunderstandings and myths about the subject," Ms Foley said. And it also closes a legal loophole by making employers liable for sexual harassment by their employees, customers or other business contacts if they do not take reasonable steps against it.
The EEA, a State body set up 20 years ago, was not involved in drafting the Bill, Ms Foley said. The new legislation provides the first legal definition of sexual harassment. The Labour Court currently includes it in its definition of discrimination.
Under the new legislation, gender discrimination cases can be referred to the circuit court. However, Ms Foley said she was wary of this as the circuit court was not private, informal and could prove very expensive.
Mr Michael Rubenstein, from the Equal Opportunities Review, UK, said the litmus test of a good procedure for dealing with complaints was that the victim would not be penalised. "If a woman knows that the end result of taking a complaint is that she will be moved rather than the harasser, then why should she bring that complaint?"
Ms Margaret Nolan of the Irish Congress of Trade Unions (ICTU), said there had been a major increase in the number of cases taken since the ICTU issued guidelines in 1987. Most of these are settled without going to the Labour Court.
"Sexual harassment has nothing to do with sexual attraction. It's an abuse of power. You will not find very many women managers subject to sexual harassment." Ms Nolan said the ICTU was getting a large number of queries from teachers being harassed by young male pupils. She also criticised the "reasonable person" test.
