Same-sex sexual harassment in the workplace does not appear to be covered by the Employment Equality Act 1998 according to Ms Marguerite Bolger, barrister and employment law expert. She was speaking at a recent one-day seminar on employee well-being, organised by Liberty Risk Services.
The Act outlaws harassment on the grounds of gender, marital status, family status, age, disability, religion, sexual orientation, race/ethnic background/nationality and membership of the Traveller community.
The aim of the legislation is seemingly to ensure a balance between the interests of employers and employees, she said.
Sexual harassment includes spoken words, gestures or the production, display or circulation of written words, pictures or other material that could reasonably be regarded as "sexually, or otherwise on the gender ground, offensive, humiliating or intimidating" to an employee.
"For an incident of sexual harassment to be actionable it must be subjectively `unwelcome' to the victim and objectively be `reasonably . . . regarded as . . . offensive, humiliating or intimidating'," she said.
In the new Act, clients, customers or other business contacts include any person with whom an employee may reasonably be expected to come into contact in the course of their employment.
An employee is unlawfully discriminated against if they are sexually harassed "whether or not in the workplace or in the course of their employment, and where they are then treated differently either in the workplace or in the course of their employment by reason of their rejection or acceptance of the sexual harassment, or that it could be reasonably anticipated that they would be so treated. Thus, liability for sexual harassment that occurs outside the workplace or outside the course of the employment is limited to a situation where the employee is treated differently in the workplace or in the course of their employment as a result," said Ms Bolger.
The Act "appears not to cover same-sex sexual harassment", she said. "As sexual harassment is deemed to constitute discrimination on the gender ground, there must be an incident involving two people of the opposite sex, despite the fact that in every other respect the sexual harassment perpetrated by a member of one sex upon a member of the same sex may satisfy the definitions provided in Section 23 of the new Act."
If a worker has been sexually harassed by a member of the same sex, he or she can only pursue other legal remedies, such as a claim for unfair dismissal or a civil breach of contract case, she said.
Non-sexual harassment is defined in the Act as subjectively unwelcome to the victim and objectively regarded as offensive, humiliating or intimidating on any of the nine grounds.
jmarms@irish-times.ie
