Harassment

Overview

The Equal Status Act prohibits harassment and, in particular, sexual harassment.  Harassment is categorised as a form of discrimination, which involves the exercise of power and dominance on one of the statutorily prohibited grounds of discrimination.

A person shall not harass (sexually or otherwise) another person where the latter seeks to avail of a service or purchase goods. An employer or another body may be liable for harassment perpetrated by a third-party who was present unless he took reasonably practicable steps to prevent it.

It is an offence to procure or attempt to procure another person to engage or procure another person to engage in discrimination, sexual harassment or harassment or to permit sexual harassment or harassment of a person.


Background and Discriminatory Element

Earlier versions of the equality legislation categorised some types of harassment, as a form of direct discrimination. Complainants were required to show that they had been treated less favourably than the relevant comparator based on a discriminatory ground.  The Equal Status Act expressly prohibits harassment in itself. It does not require a comparator.

Under the Equality Act 2004, the conduct is to be related to one of the nine prohibited grounds of discrimination. There is an absolute prohibition on unwanted conduct related to a discriminatory ground or of a sexual nature.  It need not be within any of the discriminatory grounds, in the latter case.

The Act defines harassment as any form of unwanted conduct related to any discriminatory ground.  There may be harassment by actions or words or by a combination of words and actions. Harassment may be conducted by a man against a man; a man against a woman, a woman against a man or a woman against a woman.


Sexual Harassment

Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature.  It is conduct which has the purpose or effect of violating a person’s dignity, by creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.  It may include acts, requests, spoken words, gestures, the display or circulation of written words, pictures and other materials.  It may include text messages, graffiti and website content.

A person shall not sexually harass or harass another person where the victim

  • avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
  • is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or
  • is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment at which the person is in a position of authority.

A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.


Instances of Sexual Harassment

Sexual harassment may arise in the course of the employment in the supply of goods and services and in certain other contexts.  Behaviour, including inappropriate physical conduct and sexual overtones in circumstances where a person of the opposite sex (generally male), would not be treated in the same manner, may constitute harassment.

Any difference in treatment in the workplace or the reasonable expectation of a difference in treatment, due to the rejection or acceptance of sexual harassment constitutes sexual harassment, regardless of the context in which the harassment takes place.

Sexual harassment includes the requesting of sexual favours. It may include a hostile environment.  Most harassment cases have arisen from words spoken, whether alone or with gestures.  The making of disparaging comments has been held to constitute discrimination.


Ordinary Harassment I

“Ordinary” harassment may be shown if the conduct, otherwise than on the gender ground is offensive humiliating or intimidating. An employer may be made liable for the actions of his employees.

Complaints of “ordinary” harassment must show that there was unwanted conduct, related to one of the prohibited grounds or that that the conduct had the purpose or effect of violating the dignity of the victim, or of creating an intimidating, hostile, degrading humiliating or offensive environment.

Harassment on the age ground has been found where derogatory remarks made with reference to a person’s age.

Many successful harassment complaints have been taken on the traveller and disability grounds. They commonly involve demeaning and abusive remarks.  Where the behaviour and attitude, including its tone and context, is intimidating or humiliating, there may be harassment for the purpose of the legislation.


Ordinary Harassment II

Comments which may appear relatively neutral, may in their context constitute harassment because they are demeaning, abusive and undermine the person referred to.  Actions accompanied by a comment may cause otherwise innocuous behaviour or an otherwise innocuous comment, to constitute harassment.

Many cases have involved harassment against persons in wheelchairs or who are otherwise disabled. There has been held to be harassment, where disabled persons have been embarrassed or treated in a humiliating fashion, which not have occurred in relation to a person without the disability. The harassment must be more than mere unpleasant behaviour in itself. It must be linked to a discriminatory ground.

A hypothetical comparator may be used to establish the discriminatory element in the harassment.  If it is shown that a hypothetical person, not having the relevant characteristics, would not have been so treated, then there may be harassment. The behaviour need not refer to the characteristic associated with the prohibited discriminatory ground in question.


Vicarious / Harassment

The issue of employer liability may arise in the context of workplace harassment (including sexual harassment). It is also relevant in relation to interaction with customers.

If sexual harassment is established, it is a matter for the employer to show he took reasonable steps to prevent the harassment, in order to avoid liability.  Suitable steps include adopting codes and practices, procedures, policies and training.

The Code of Practice on Sexual Harassment and Harassment in Work, made under the Employment Equality Act, gives guidance on what should be done, to reduce the risk of employer liability. It requires employers to act in a preventative and remedial way.

In order to avoid liability, the code recommends that there should be comprehensive, accessible and effective policies, which focus on prevention, best practice and remedial action.  There must be an accessible, effective complaints procedure. Procedures must put in place to deal with incidents. Appropriate investigative and follow-up action should be taken in relation to incidents.

Staff training and employment policies are critical.  Policies must be implemented and monitored as appropriate.  Staff should be trained in the requirements of the legislation.


Vicarious Liability

In accordance with general principles of law, an employer or other body is vicariously liable for persons under its control.  The most common instance of vicarious liability is that of employers for their employees. The Equal Status Act provides that anything done by a person in the course of his employment shall be treated as the act of the employer, whether or not it was done with the employer’s knowledge or approval.

Service providers and the providers of goods may be liable for discriminatory conduct on the part of the employees in the course of employment. In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours, the workplace and the work context, is unlikely to be “in the course of employment”, in most cases.

A principal is liable for discrimination by his agent, where the acts (etc.)  have been undertaken with his express or implied authority. Anything done by a person, his agent or other with his authority express or implied, is treated as his act.

In proceedings under the Act against an employer in respect of an act alleged to be done by an employee, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the employee from doing the act or from doing acts of that description in the course of employment.


Vicarious Limits

The question can arise as to whether an employer is liable for intentional wrongdoing and offences.  In some cases, serious misconduct, such as sexual assault, has been held to be outside the scope of the employee’s duties on general principles.  However, the Equal Status Act appears to intend to broaden the common law principle of vicarious liability.

In order to be “in the course of employment”, there must be some connection with the employment.  An incident happening outside of work hours and the workplace is unlikely to be in the course of employment in most cases. An incident concerning an employee at a work function may be the subject of vicarious liability.


Educational Establishments

There are further specific provisions in respect of harassment in educational establishments. The person responsible for the operation of an educational establishment where the goods, services or accommodation facilities are offered to the public, shall not permit another person who has the right to be present in or avail himself of any facilities, goods or services provided at that place, to suffer sexual or other harassment at that place.

It is a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or other harassment.

The effect of the above provisions is that some classes of institutions and service providers must take active steps in order to prevent harassment or discrimination occurring on their premises or in the conduct of their business.  This, in effect, requires a policy and appropriate training. The policy should be implemented.  There should be a responsible senior member of staff designated to deal with incidents.


References and Sources

Irish Books

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law Smith        2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Statutes

Equal Status Act 2000

Equality Act 2004

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11