Addressing Sexual Harassment Law’s Inadequacies in Altering Behaviour and Preventing Harm: A Structural Approach

2020 ◽  
Vol 43 (1) ◽  
Author(s):  
Elizabeth Shi ◽  
Freeman Zhong
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Regulatory Framework ◽  
Structural Approach ◽  
Positive Duty ◽  
Current Form ◽  
Public Activity ◽  
Normative Principle ◽  
Regulatory Approach ◽  
Future Harm

Section 3(c) of the Sex Discrimination Act 1984 (Cth) provides that one object of the Act is ‘to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational organisations and in other areas of public activity’. This article argues that the Act, in its current form, is not adequate for achieving that object for two reasons: first, its operative provisions reflect a normative principle that has, as its aim, the compensation of harm but not the prevention of future harm; and second, it fails to recognise some systemic harms caused by sexual harassment. The article proposes a structural approach to workplace sexual harassment regulation, which involves a positive duty for organisations to take reasonable steps to prevent sexual harassment and a regulatory framework aimed at putting in place the necessary motivations and incentives to ensure compliance with that duty. The article draws on insights from regulatory theory to explain how this regulatory approach can better serve the object of eliminating sexual harassment so far as is possible.

Sexual Harassment of Working Women: A Case of Sex Discrimination

1980 ◽  
Vol 80 (8) ◽  
pp. 1686 ◽  
Author(s):  
Nadine Taub ◽  
Catherine A. MacKinnon
Keyword(s):  
Sexual Harassment ◽  
Working Women ◽  
Sex Discrimination

scholarly journals Probability and loss: two sides of the risk assessment coin

2011 ◽  
Vol 35 (11) ◽  
pp. 413-418 ◽  
Author(s):  
Matthew M. Large ◽  
Olav B. Nielssen
Keyword(s):  
Mental Health ◽  
Risk Assessment ◽  
Decision Making ◽  
Clinical Decision Making ◽  
Clinical Decision ◽  
The Other ◽  
Current Form ◽  
Mental Health Settings ◽  
Future Harm ◽  
Two Sides

SummaryRisk assessment has been widely adopted in mental health settings in the hope of preventing harms such as violence to others and suicide. However, risk assessment in its current form is mainly concerned with the probability of adverse events, and does not address the other component of risk – the extent of the resulting loss. Although assessments of the probability of future harm based on actuarial instruments are generally more accurate than the categorisations made by clinicians, actuarial instruments are of little assistance in clinical decision-making because there is no instrument that can estimate the probability of all the harms associated with mental illness, or estimate the extent of the resulting losses. The inability of instruments to distinguish between the risk of common but less serious harms and comparatively rare catastrophic events is a particular limitation of the value of risk categorisations. We should admit that our ability to assess risk is severely limited, and make clinical decisions in a similar way to those in other areas of medicine – by informed consideration of the potential consequences of treatment and non-treatment.

scholarly journals Recent Developments in Sexual Harassment Law: Towards a New Model

2009 ◽  
Vol 14 (2) ◽  
pp. 189 ◽  
Author(s):  
Anita Mackay
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Power Imbalance ◽  
Persistent Problem ◽  
New Model ◽  
Senate Committee ◽  
Sexual Harassment Law ◽  
Recent Developments ◽  
Positive Duties ◽  
Males And Females

<p>Despite more than 20 years of sexual harassment being unlawful, it is still a persistent problem in Australian workplaces and one which is grossly under-reported. The law is this area should seek both to redress the harm<br />suffered by the victim and to reduce the power imbalance between males and females. The effectiveness of the Sex Discrimination Act 1984 in achieving these objectives was reviewed by a Senate Committee in 2008.<br />One of its recommendations was for positive duties to be imposed on employers to eliminate sexual harassment. This article outlines how this recommendation might be implemented, and taken further, by shifting the<br />onus away from the victim and onto the more powerful players in any sexual harassment scenario – the harasser, the employer and the community in the relevant workplace.</p>

The Challenge of the Law to Electronic Commerce

2011 ◽  
pp. 383-410
Author(s):  
Severine Dusollier ◽  
Laetitia Rolin Jacquemyns
Keyword(s):  
Electronic Commerce ◽  
European Commission ◽  
Dispute Resolution ◽  
New Products ◽  
Regulatory Framework ◽  
Electronic Marketplace ◽  
Goods And Services ◽  
Legislative Action ◽  
Regulatory Approach ◽  
Rules Of The Game

In the Communication on Electronic Commerce of 19971 , the European Commission stressed that “in order to allow electronic commerce operators to reap the full benefits of the Single Market, it is essential to avoid regulatory inconsistencies and to ensure a coherent legal and regulatory framework for electronic commerce.” The electronic marketplace has a crucial need to know “the rules of the game”2 in order to carry out electronic commerce. Therefore, the regulatory framework has to be clear, stable and predictable, both to enable e-commerce operators to face all challenges raised by the development of new products and services and to ensure the trust and confidence of consumers in the new electronic supermarket. These are the main objectives of the legislative action of the European Commission3 which has, in recent years, laid the foundations for a consistent setting of the legal scene for electronic commerce in Europe. It is worth recalling that the action of the Commission has been and should be guided by the key principles of the EC Treaty, particularly by the concern for the Internal Market and the enhancement of the circulation of products and services. A clear consequence is that any regulatory intervention of the Commission should be directed to a further harmonization or clarification of the existing rules in order to lift the uncertainties and discrepancies in national policies which might impede the free circulation of electronic goods and services. Other key concerns of the European Commission are to refrain from over-regulating electronic markets and businesses and to remain open to a self-regulatory approach and alternative dispute resolution. This last guideline is particularly followed in the recent Draft Directive on electronic commerce4 .

scholarly journals Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders

Laws ◽  
2019 ◽  
Vol 8 (4) ◽  
pp. 34 ◽  
Author(s):  
Karen O’Connell
Keyword(s):  
Decision Making ◽  
Sexual Harassment ◽  
Personality Traits ◽  
Personality Disorders ◽  
Sex Discrimination ◽  
Case Law ◽  
Feminist Perspective ◽  
Prevalence Rates ◽  
Legal Practice ◽  
The Law

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the “intersectionality” section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered “disordered” and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work.

scholarly journals Negotiating Respect: Sexual Harassment and the Law in Hong Kong

2005 ◽  
Vol 7 (1-4) ◽  
pp. 127-168
Author(s):  
Carole J. Petersen
Keyword(s):  
Sexual Harassment ◽  
Chinese Women ◽  
Current Model ◽  
Sex Discrimination ◽  
Public Hearing ◽  
Power Imbalance ◽  
Equal Opportunities ◽  
Statutory Duty ◽  
Systemic Impact ◽  
The Law

This article critiques the sexual harassment provisions of Hong Kong's Sex Discrimination Ordinance , as well as the enforcement model. Although the judiciary has had some opportunity to interpret the Ordinance, most complaints never reach the courts because the Equal Opportunities Commission has a statutory duty to attempt to conciliate a complaint before granting legal assistance. When the Ordinance was enacted it was widely assumed that Chinese women would prefer confidential conciliation to a public hearing. However, interviews with past complainants and representatives of women's organizations reveal that many complainants find conciliation conferences to be extremely stressful. They also feel demeaned and disempowered by what is effectively an obligation to negotiate with the respondent. The author concludes that the current model exacerbates the power imbalance between complainants and respondents and limits the systemic impact of the law. She argues that an informal and inexpensive Equal Opportunities Tribunal should be created. This would allow those complainants who are willing to try their complaints to proceed directly to a hearing, without any obligation to first participate in conciliation.

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