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...policy objective Directive 2002/73/EC (hereafter, "the Directive") is to harmonize the Member States' laws regarding the equal treatment of men and women. As Member States (currently 15 nations, soon to be 25) adopt laws implementing the Directive, sexual harassment will be recognized as a form of gender-based discrimination throughout the EU.
The Directive is a natural outcome of a series of policy initiatives over the last few decades aimed at realizing a fundamental principle underlying the EU--the equal participation of men and women in the labor market. Sexual harassment in the workplace did not receive serious attention by EU policymakers until the mid-1980s, when Rubenstein (1987) published the results of his study made on behalf of the European Commission. Finding that sexual harassment was a widespread problem, the Commission undertook a number of initiatives in the early 1990s to correct the problem, but progress was painfully slow and results minimal. In a more recent manuscript prepared by the European Commission (1998), evidence suggests that between 40 and 50% of women, and 10% of men, have experienced sexual harassment at some point in their working lives.
The EU's most recent efforts to eliminate sexual harassment in the workplace present significant challenges and opportunities for human resource managers in multinational corporations with interests in the EU. This article first identifies the major components of the Directive and, where appropriate, comments on significant similarities with U.S. law. Next, we offer informed speculation about how employers may wish to influence unresolved issues on the public policy agenda as they address the challenges created by the Directive. The article concludes with practical suggestions for employers who wish to seize the opportunities provided by the Directive for eliminating sexual harassment from the workplace.
Key Features of the Directive
The Directive contains a number of key elements, including: (1) the nature of workplace harassment; (2) reference to preventative measures on sexual harassment; (3) the establishment of judicial and/or administrative procedures for enforcement purposes; (4) compensation for victims of discrimination and harassment; and (5) the establishment of national agencies charged with promoting equal employment opportunities.
* Definition of workplace harassment
"Harassment" and "sexual harassment," as defined in Article 2(2) of the Directive, are now recognized as a form of discrimination on the grounds of sex and therefore are contrary to the principle of equal treatment of men and women. "Harassment" is defined to occur "where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment." In contrast, "sexual harassment" exists "where any form of unwanted verbal, nonverbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment." The Directive also establishes that a person's rejection of, or submission to, harassment or sexual harassment may not be used as a basis for an employment decision affecting that person (Article 2(3)).
Interesting parallels can be drawn between the language of the Directive and definitions used in the United States. For example, Title VII of the 1964 Civil Rights Act prohibits employer discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." (42 U.S.C. [section] 2000e-2(a)(1)(1994)). The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the provisions of Title VII, states that sexual harassment involves "unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment" (EEOC, 2002).
The concept of "unwanted" is a key element of the Directive's definitions, and closely mirrors U.S. sexual harassment law. In the landmark 1986 decision of Meritor Savings Bank v. Vinson (hereafter "Meritor"), the United States Supreme Court ruled unanimously that the employee's consent to sexual liaisons was not germane to the question of whether sexual harassment existed; rather, the proper inquiry is whether the behavior is unwelcomed. By employing the word "unwanted," Article 2(2) of the Directive appears congruent with U.S. law, and the crux of the determination is if the employee had a meaningful choice in being exposed to objectionable behavior.
The Directive also relies on the key phrase "intimidating, hostile, degrading, humiliating, or offensive environment." While the Directive does not provide guidance on precisely what constitutes such an environment, parallels can again be drawn by reference to U.S. law. The Meritor decision established the concept of a...
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