Sexual harassment on the agenda

“We will prepare material that can help both employers and employees in their efforts to prevent sexual harassment,” says Helene Jesnes, a lawyer and adviser to the Equality and Anti-discrimination Ombud.

A study conducted by the National Institute of Occupational Health and the University of Bergen in 2012 shows that one of six employees in Norway of both genders have been sexually harassed at the workplace. In 2009 the University of Oslo became an example of how the higher education sector is not exempt from this problem when a sexual harassment complaint regarding the Faculty of Dentistry was publicized in several Norwegian newspapers.

Important analysis

The Ombud has compiled other summaries previously, including on age and pregnancy discrimination, but now the focus is on harassment in working life.

Although the report will not be made public until early January, Jesnes spoke about the Ombud’s review of all the cases of harassment in working life, including sexual harassment, at a seminar organized by the Ombud together with the Committee for Gender Balance in Research (the KIF Committee).

National and international laws are used to look at the cases brought to the Ombud and at those which have been forwarded to the courts. Jesnes presented some of the findings from the cases.

“There is very little literature in the field, which is not so easy for someone from the outside to become familiar with. This is why we hope that we can prepare a useful report for those on the outside. The goal is to give guidance to employers and employees about their obligations and rights, in accordance with the prohibition against harassment in working life,” she says.

60 cases of sexual harassment

The Ombud currently enforces all harassment cases, except for sexual harassment. Pursuant to Section 8 of the Gender Equality Act, these are to be handled by the courts.

“Since the prohibition against sexual harassment is found in the Gender Equality Act, the Ombud is required to provide guidance to those who contact us about it. The Ombud has received about 60 sexual harassment cases.”

In addition to guidance, the Ombud may state her opinion as to whether employers and educational institutions have satisfied their obligation to preclude and seek to prevent sexual harassment. The Ombud also enforces the prohibition against retaliation when harassment is reported.

“Beyond the cases where we provide guidance, we have several cases in which employees believe they have got negative reactions from their employers after they reported being sexually harassed,” explains Jesnes.

The summary consists of an overview of the law within the entire harassment field. It addresses harassment in working life in general, such as on the basis of gender, sexual orientation, age, disability or ethnicity, as well as sexual harassment, both the cases that have gone to court and the cases received by the Ombud.

Young women most vulnerable

In the review the Ombud highlights the findings related to problems of proof, sphere of responsibility when the perpetrator is a colleague and not a supervisor, the threshold for harassment, and the weight given to subjective experience.

“We write about typical findings in harassment cases. At the seminar I talked about some of the cases we see, such as the importance of the subjective experience of the person who is harassed, issues related to proof, and the employer’s duty to preclude and prevent harassment. I also talked about what we in the Ombud’s office can do in these cases.”

“We see certain tendencies in the cases. One example is that it is often young women who are sexually harassed,” she says.

Employer’s duty

“The employer’s duty to preclude and seek to prevent harassment is important because it gives us a duty to investigate whether an employer has its routines in order. When someone submits a complaint to us, we can investigate whether the employer or the organisation has its routines in order, and hopefully prevent harassment from recurring,” says Jesnes.

The Ombud has previously reprimanded the higher education sector for lacking the routines required by the Gender Equality Act. For example, the University of Oslo was criticized because in a check in 2010 it could not show adequate routines for preventing harassment. The Ombud later withdrew the criticism after the university could in fact show it had good routines in place.

Both the employer and the leadership in the education sector are responsible for ensuring that the organization precludes and seeks to prevent harassment.

“It is critical that the institutions have an articulated approach, clear guidelines against harassment, and procedures for reporting harassment. This is something we also often take a position on,” says Jesnes.

Very few cases go to court

“We have found only five sexual harassment cases that have gone to court,” Jesnes notes.

Based on the studies mentioned and stories in the media, this figure is low. According to Jesnes, part of the explanation may be that it is difficult to prove sexual harassment.

“There are seldom witnesses in these cases. The perpetrator of harassment usually does it when nobody else is nearby, and then it is the victim’s word against the perpetrator’s.”

The law states that there must be grounds for believing that harassment has occurred and that the behaviour is unwanted.

“This can be difficult to prove,” she says.

Although it is difficult to prove, one of the five cases that went to court shows that witnesses do not have to be present at the moment the incident occurred. The plaintiff’s claim can be upheld if the witnesses have been told what happened in a concrete and detailed way. In the case in question, a woman gave a detailed account of the harassment to her doctor, which was recorded in the patient’s journal.

Wants a low-threshold service

Since 2010, Equality and Anti-discrimination Ombud Sunniva Ørstavik, who is Jesnes’ supervisor, has supported a low-threshold service for victims of sexual harassment. Earlier this year Ørstavik said that the threshold to take cases to court is too high and that the victims often do not speak up. She believes that the law would be enforced better if sexual harassment were enforced in the same way as other forms of harassment.

“We see there is a need to handle these cases in a different way,” says Jesnes.

The Ombud is not alone in thinking that there should be a low-threshold service for sexual harassment. The UN Committee on the Elimination of Discrimination Against Women has also recommended that Norway consider this option for enforcing sexual harassment.

Translated by Connie Stultz.