A SHORT SIGHTED LOOK AT SEXUAL HARASSMENT

A SHORT SIGHTED LOOK AT SEXUAL HARASSMENT

By Ray Alan T. Drilon

Judge, RTC, Bacolod City, Philippines


The concept of “sexual harassment” has not been clear in the Philippine setting until the passage of the Anti-Sexual Harassment Law (RA 7877). Many do not realize that what may often be regarded as trivial acts or conduct toward the opposite sex, would already constitute sexual harassment. Views differ on what is an acceptable behaviour as it relates to the concept of sexual harassment. Reduced to its bare essentials, the act, conduct, speech or behaviour of the harasser is either sexual in nature, sexually suggestive or carries sexual allusions. Simply put, the sexual harasser has a sexual hang-up.

Typical examples would be obscene gestures, sexually oriented jokes or remarks, sexual advances, unwelcome body contact and intimidation of a sexual nature. What distinguishes sexual harassment from lascivious act or vexatious behaviour is the relationship between the victim and the offender. Sexual harassment occurs when one person has power over another and uses such power and ascendancy to harass or coerce the other to accept unwanted sexual attention in exchange for favourable treatment or simply to harass or sexually demean another.

There two (2) forms in which sexual harassment may be committed.

First is by demands, requirements or impositions in connection with one’s employment, training or education, in exchange for sexual favour. The offense is committed by mere demand, request or imposition by the offender.

The second form is acts of sexual nature sufficient to create a “hostile environment.”  

An example of the first form of sexual harassment is where an employer threatens to dismiss from employment an employee, unless the employee agrees to have sex with the employer. This form of sexual harassment where demands or requirements are made in exchange for sexual favour is relatively discernible because the bottom line of the offensive act is quid-pro-quo.

The sexual harassment in this form involves coercive trade-off where the victim is forced to grant unwelcome sexual favour in exchange for better or favourable treatment in terms and conditions of employment. This also applies to an academic environment where the teacher makes similar sexual demands from a student in exchange for favourable school performance or merit.

The second form of sexual harassment is more difficult because the acts of the sexual harasser may not be as easily discernible. The harasser’s act or behaviour (sexual in nature) in the second form should be sufficient to create a “hostile environment,” otherwise the charge would not hold.  

The unwanted verbal or physical behaviour of a sexual nature should be shown as creating a hostile or intimidating environment which would interfere in the victim’s work or school performance. In this category of sexual harassment, the offender’s unwelcome behaviour should be severe and pervasive as to create a hostile or abusive or intimidating environment.

Unlike the coercive trade-off from of sexual harassment, the offender need not make specific sexual demands. It is enough that the offender committed verbal or physical acts of a sexual nature, if not, sexually suggestive, sufficiently severe as to create a hostile environment to the victim.

An example of the second form of sexual harassment is the continuous and inappropriate touching, hugging and embracing by the boss of her secretary coupled with sexual innuendos or sexual advances everytime the boss dictates a letter or memorandum, in the privacy of his office.

The examples given are by no means archetypal because actual situations vary a lot. But perceptions of what constitutes sexual harassment differ especially among men who may even insist that a certain form of behaviour can be regarded as acceptable even if perceived by the opposite sex as uncomfortable, to say the least, or for the most, offensive.

Sexual harassment was once regarded as a private matter and the victim would prefer to keep it quiet. Radical feminism has certainly thwarted the excesses of male chauvinism. Specific legislation dealing with sexual harassment came about mainly due to strong feminist advocacy.

But what would be the standard for determining sexual harassment? What factors should be considered in determining whether a particular conduct or behaviour constitutes sexual harassment? There are no hard specific tests.

In order to give us an idea of the difficulties which may arise on this issue, a hypothetical situation may serve to illustrate. Again for emphasis, this is hypothetical.

The manager of a trading firm, a married middle-aged executive, has a female secretary in her twenties. She is single. Every day the manager greets his secretary how she is and then tells her she looks pretty and sexy in her dress. More often the manager comments that any man who gets her would be lucky because she is desirable. Whenever the manager asks her to take down some dictation, he calls her in his private office and closes the door. More often he puts his hand on her shoulder while composing his dictation, moving around her as he collects his thoughts, stares at her breast and legs. When the job is through the manager leads her out, putting his hand on her shoulder, at times holding her close, or touching her face. Whenever there are official gatherings the manager asks her to sit close beside him brushing his arm with hers. He whispers to her that if she needs anything she should not hesitate to ask. He cracks green jokes now and then. He often invites her out and tells her that he owns a cottage in another town where the view of the sea is enthralling and they can be alone. He doesn’t resent it when she turns down the invitation but tells her he would be pleased if she accepts the invitation. The secretary is severely distressed, dreads meeting her boss every working day, but hesitant to complain of sexual harassment because she doesn’t want to be embarrassed. She is also afraid of displeasing her boss.

The situation given would elicit diverse opinions.

Are the acts described sufficient to create a hostile or intimidating work environment? What if the manager explains that he is only being kind, solicitous, concerned and fatherly. That the body contacts are innocent brotherly gestures of appreciation without any malice. That the green jokes are meant to amuse if only to add spice to an otherwise boring workplace.   

Did the acts of the manager in our hypothetical situation create an unfavourable working environment?

In a situation like this, the difficulty lies in the reasonable standard by which the harasser’s conduct should be evaluated. Decisions of the US Supreme Court recognize the “reasonable person” test. The acts or conducts complained of should be viewed from the perspective of a “reasonable person” then no offense is committed.

The challenged conduct should be viewed in the context of the environment and the peculiar circumstances in which the harassment took place. The victim’s response or attitude to the sexual advances is also crucial in settling the question whether such sexual conduct is unwanted or not.

In any case the safest recourse would be to “keep off the grass.”     

When in doubt act like a saint.