Harassment in the Workplace: Victims of Discrimination

In Wileman v. Minilec Engineering, Popplewell J suggested that a woman who dressed provocatively in the workplace was inviting comments on her appearance and that this would call into question any claim that these comments amounted to a detriment for the purposes of a claim of sex discrimination under section 1(1)(a) of the Sex Discrimination Act 1975.^[1] Bridgeman and Millns suggest that this is tantamount to saying that ‘she was asking for it’.^[2] However, this is not the only area of law which appears to hold a woman accountable for the criminal or civil wrongs done to her on the basis of her behaviour. In exploring this issue, this essay will further consider sexual discrimination in the workplace as well as evaluating the law of rape and domestic violence.

The issue of sex discrimination in the workplace has always been one in which the appropriateness or otherwise of the woman’s behaviour has been subject to scrutiny. Wileman v. Minilec Engineering provides one example of this as the complainant’s attire was used as a means of explaining and justifying the behaviour of her male colleagues. This can have only two possible explanations; firstly, that the behaviour would have been viewed as unacceptable if it had been directed at a differently, more conservatively dressed woman, and, secondly, that the complainant herself caused the conduct of which she complained. The first explanation introduces a theme that is evident in the other areas of law that will be discussed in this essay; the differential treatment of women on the basis of their perceived virtue or the ‘whore and Madonna’ dichotomy.^[3] In other words, if the complainant had been a virtuous woman, the comments of the male workers would have been regarded as offensive and derogatory. However, as her choice of clothing was accepted as marking her out as an impure or disreputable woman, such language and comments directed against her could not be insulting or offensive as they were no more than she deserved as a woman of little virtue. The second explanation goes further and sees the woman as the protagonist and the provoker of the comments. By dressing in a manner that was inappropriate for the workplace, she attracted the attention of her male colleagues and prompted them to behave as they did. In other words, not only did she deserve to be subjected to ribald words and offensive comments, she had actually brought this about so one could almost conceive of the ‘wrongly accused’ colleagues being the victim rather than complainant.^[4] Here in this second view, the woman is the cause of male bad behaviour therefore she is not only to be denied the protection of the law, she is to be blamed for inducing men to contravene the law.

These two constructions of women will be revisited in the sections that follow. Before exploring other areas, it is important to look at the structure of sex discrimination law and evaluate how it creates a situation in which the behaviour of the female complainant is scrutinised as much as the behaviour of those against whom complaint is made. Prior to the introduction of the new section 4A(1)(a) into the Sex Discrimination Act 1975, there was no free-standing provision dealing with sexual harassment so it was necessary to bring the facts of a harassment claim within the scope of section 1(1)(a) which prohibits direct discrimination on the grounds of sex. This provision provides that a person discriminates against a woman on the grounds of her sex if he treats her less favourably than he treats or would treat a man. Therefore, the treatment of the woman has to be compared with an actual or hypothetical male comparator and found to be less favourable. It must also be established that the complainant suffered a determent as a result of this less favourable treatment.

In invoking these provisions as the basis for a complaint of sexual harassment, the complainant lays her own behaviour open to scrutiny. In Wileman v. Minilec, not only did the tribunal consider evidence of the complainant’s choice of clothing but also of her willingness to appear partially dressed in a national newspaper; a matter that had absolutely no bearing on the workplace or the way in which her male colleagues behaved towards her but which, of course, contributed to the construction of the complainant of a particular ‘type’ of woman. Equally, in Snowball v. Gardner Merchant, the tribunal considered it relevant to the claim of sexual harassment in the workplace that the complainant sometimes spoke about her sexual relationships at work and had been known to refer to her bed as a ‘playpen’.^[5] These cases demonstrate that women who are viewed as presenting themselves as sexual being are not seen as deserving of the protection of the law.^[6]

This approach is mirrored elsewhere in the law, notoriously in rape cases where a defence barrister who can discredit a rape victim’s morality is viewed as being well on the way to securing an acquittal.^[7] Rape presents very particular challenges for the legal system as the only difference between rape and lawful intercourse exists in the states of mind of the two parties involved: consent exists in the mind of the victim and belief in the presence of consent in the mind of the defendant. Combine this with the fact that it is an offence that rarely takes place in the presences of witnesses and it is evident that evidential and probative difficulties will proliferate.^[8] It is probably due to the lack of concrete evidence available upon which to determine what actually happened that causes the court to resort to an evaluation of the characters of the parties before them in an attempt to work out what probably happened.^[9] Unfortunately, this speculative enterprise is marred by the presence of rape myths which colour the interpretation of events and often condemn the victim on the basis of her behaviour. Nowhere in the law is the differential treatment of women on the basis of their perceived virtue so pronounced. The ‘perfect’ rape victim, from the point of view of the prosecution, is either an elderly widow, a housewife of impeccable virtue or a young girl; victims whose sexuality is extinguished, controlled or not yet emerged hence they are women who could not possibly have been desirous of intercourse therefore their denials of consent cannot be disbelieved.^[10] Conversely, a promiscuous woman or one who can in some way be construed as lacking in virtue cannot be believed and is condemned for two coexistent reasons: firstly, such a woman would not have refrained from intercourse as they are overtly sexual beings and, secondly, such a woman is immoral and dishonourable so is obviously a liar. Here, the woman’s behaviour is determining two questions: the defendant’s liability for violating her and her veracity as a witness. Moreover, women who have behaved ‘inappropriately’ are seen as causing their own rape whether this is by flirting, drinking, accepting lifts or failing to reject earlier sexual advances sufficiently emphatically; a study of rape cases led academics to adopt the term ‘victim-precipitated rape’^[11] to describe cases in which there was a distinct tendency by the judge to characterise the victim as responsible for the intercourse that occurred.^[12]

Moreover, rape case history is replete with illustrations of the way in which a woman’s behaviour is used as a basis to condemn her as undeserving of the protection of the law (where a more virtuous woman would be protected) or as the catalyst for the intercourse which occurred and therefore to blame for the whole situation. An example of this first category can be seen in the case in which the trial judge, sentencing the defendant to three years’ imprisonment in contravention of the usual five-year starting point, stated ‘while every woman is entitled to complain about their body being violated, someone who for years has flaunted their body and sold it cannot complain as loudly as someone who has not behaved in this way’.^[13] Here, the judge is clearly echoing the sentiments of the tribunal in Wileman v. Minilec Engineering that some women are less worthy than others and their behaviour renders them vulnerable to poor treatment by others (usually men). Equally, instances can be found of cases in which judges have held women responsible for the sexual violation that they experienced. For example, in an American case, a judge refused to hold a 15-year-old boy responsible for the rape of a fellow student, stating that his behaviour was a normal reaction to the girl’s provocative clothing and general permissiveness.^[14] The epitome of victim-blaming can be attributed to trial judge, Bertrand Richards, who imposed a financial penalty only on a convicted rapist and categorised the victim’s behaviour as ‘contributory negligence’ as she accepted a life from the defendant at 2am after finding herself stranded. This prompted the comment that any woman who went hitch-hiking at night should expect to be raped because ‘in the true sense of the word she was asking for it’.^[15]

If women who have been subjected to unwanted sexual activity are not blamed inciting their rape, they are blamed for giving insufficiently clear messages to the defendant. It is not unusual for cases that hinge on consent to involve admissions by the defendant that the victim had said ‘no’ but then to claim that this was not interpreted as a refusal of consent to intercourse. Examples proliferate of cases in which this has occurred. Lees quotes a case in which the judge addressed the jury in a rape case saying ‘as the gentlemen of the jury will understand, when a woman says ‘no’ she does not always mean ‘no’’^[16] where a judge in New Zealand stating that ‘if every man stopped the first time a woman said ‘no’ the world would be a much less exciting place to live’ after which the jury took only 45 minutes to acquit the defendant.^[17] Again, the message is clear that it is the responsibility of the woman to ensure that any denial of consent is communicated in unequivocal terms to the defendant and that the onus is upon the woman to ensure that she countermands the culturally embedded acceptance of an acquiescence phrased as a denial; in other words, as it is accepted that ‘no’ does not mean ‘no’, a woman who truly means ‘no’ must make sure that she makes this clear.

Rape is clearly an area that illustrates the scrutiny of a woman’s behaviour as the basis for a determination of the operation of the law. In common with the examples cited in relation to sexual harassment in the workplace, the victim’s conduct is seen either as the catalyst for the conduct which she experiences or she is seen by her behaviour to deserve her victimisation because she has behaved differently to other women. In either case, she has brought her victimisation on herself by her behaviour. Another area in which a woman’s victimisation is attributed to her own behaviour rather than that of her abuser is domestic violence. Here, however, the focus for attention is not only on what the woman has done to prompt such outrageous behaviour in her partner but also on her role in permitting her victimisation to continue; even now, the question of why the abused woman did not ‘just leave’ is frequently asked in domestic violence cases.^[18]

Dealing first with the victim’s contribution to their victimisation, there is evidence of a shared belief between prosecution and defence that the defendant acted as he did because of something that the victim said or did as both sides seek to establish a chronology of events that will lead to the identification of the ‘trigger’ that caused the violence. In other words, there is a wholesale acceptance that the victim’s behaviour in some way enraged or aggravated the defendant thus causing the violence which she experienced. It is commonplace for the cross-examination of victim’s of domestic violence to follow the ‘what did you say, what did you do’ line of questioning thus giving a very clear message that the defendant responded with violence to some provoking words or conduct of the victim.^[19] This overlooks the complexity of domestic violence and the multiplicity of its causes in favour of an explanation that lays the blame firmly at the feet of the victim. Furthermore, even when victims explain innocuous behaviour of their part, this may be met with a condemnatory reaction. For example, Hastings outlines one case in which the victim had been hospitalised after presenting her husband with the ‘wrong’ dinner: ‘but you did know that your husband doesn’t really enjoy fish, didn’t you’.^[20] Hastings states that this demonstrates the ‘extravagance and tenacity’ of victim-blaming in domestic violence cases: ‘if the wrong choice of meal is accepted as a trigger for violence than surely all and any violence against women can be explained as the fault of the victim’.^[21] Hollies concurs with this view, stating ‘any female behaviour that results in violence is seen as causing that violence and this ensures that all domestic violence is the fault of the victim’.^[22]

This structuralism of victim-blame in domestic violence^[23] is further reflected in manslaughter cases in which abused women kill their abusive partners. Here, the plea of provocation that would reduce a conviction of murder to one of voluntary manslaughter invokes a detailed investigation into the woman’s behaviour.^[24] Now she is not only asked why she did not leave her abusive partner, she is expected to explain her violent reaction; indeed, the very fact of her violence reaction is deemed as evidence that the relationship was one of ‘mutual violence in which each [partner] gave as good as they received’.^[25] Moreover, the court does not only evaluate the history of violence inflicted upon the woman, they sift through the minutiae of her behaviour as a wife and, if applicable, as a mother, alert for evidence of ‘unsuitable’ behaviour that would mark her out as undeserving of the court’s sympathy. As Ellison notes, ‘any sign of ‘unwifely’ or ‘unmotherly’ behaviour is used to demolish the woman’s credibility as the ‘victim’ and construct her as the ‘villain’ which is likely to remove any prospect of that the jury will view her in a favourable light’.^[26]

This consideration of rape and domestic violence reinforces the conceptualisation of the female victim of sexual harassment in the workplace as to blame for her own victimisation. Any hint of ‘unsuitable’ or ‘inappropriate’ behaviour is seized upon to explain the events which occurred and to attribute blame firmly at the feet of the woman. A woman whose behaviour does not conform to the largely-patriarchal construction of a ‘good’ wife and mother is viewed as ‘asking for’ a range of unpleasant consequences from harassment and verbal abuse to violence and sexual violation. Moreover, women who ultimately respond with violence against their abuser will find themselves without the court’s sympathy for their plight if they are viewed as undeserving following scrutiny of the totality of their behaviour.

Bibliography

Amir, M., (1971) Patterns in Forcible Rape, Chicago: University of Chicago Press

Bourne, J. & Derry, C., (2004) Women and Law, London: Old Bailey Press

Bridgeman, J. & Millns, S., (1998) Feminist Perspectives on Law:Law’s Engagement with the Female Body, London: Sweet & Maxwell

Ellison, L. (2002) The Adversarial Process and the Vulnerable Witness, Oxford: Oxford University Press

Estrich, S., (1987) Real Rape, Cambridge: Harvard University Press

Evans, M. & Less, E., (2002) Real Bodies: a Sociological Introduction, Basingstoke: Palgrave

Gavey, N., (2005) Just Sex: the Cultural Scaffolding of Rape, London: Routledge

Halsbury’s Laws of England

Halsbury’s Statutes

Harlow, M.I., ‘What’s Love Got to Do with It: Blaming the Victims of Violence’ Journal of Violence and Victims (2002) vol., 17, pp. 234-247

Hastings, B., (2004) An Empirical Study of Victim-Blame in Domestic Violence, London: Routledge

Hollies, K.L., (2004) Attribution of Blame and Responsibility in Domestic Violence, New York: Carson Publications

Kennedy, H., (1992) Eve Was Framed, London: Chatto and Windus

Lees, S., (1993) Carnal Knowledge: Rape on Trial, London: Hamish Hamilton

MacKinnon, C.A., (1989) Towards a Feminist Theory of the State, Cambridge: Harvard University Press

McEwan, J., (2003) The Psychology of the Courtroom, Oxford: Oxford University Press

Scully, D., (1990) Understanding Sexual Violence, London: Unwin Hyman

Smart, C., (1989) Feminism and the Power of the Law, London: Routledge

Smart, C., ‘Feminist Approaches to Criminology or Post-modern Woman Meets Atavistic Man’ in Gelsthorpe, L. and Morris, A., (eds.) (1990) Feminist Perspectives in Criminology, Buckingham: Open University Press

Smith, D., (1987) The Everyday World as Problematic: a Feminist Sociology, Milton Keynes: Open University Press

Temkin, J., (2002) Rape and the Legal Process, 2^nd ed., Oxford: Oxford University Press

Walklate, S., (2004) Gender, Crime and Criminal Justice, 2^nd ed., Cullompton: Willan Publishing

Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective, London: Sage Publications

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Footnotes

^[1] Wileman v. Minilec Engineering [1988] ICR 318

^[2] Bridgeman, J. & Millns, S., (1998) Feminist Perspectives on Law:Law’s Engagement with the Female Body, London: Sweet & Maxwell

^[3] MacKinnon, C.A., (1989) Towards a Feminist Theory of the State, Cambridge: Harvard University Press; Smart, C., ‘Feminist Approaches to Criminology or Post-modern Woman Meets Atavistic Man’ in Gelsthorpe, L. and Morris, A., (eds.) (1990) Feminist Perspectives in Criminology, Buckingham: Open University Press

^[4] Scully, D., (1990) Understanding Sexual Violence, London: Unwin Hyman, pp. 36-45

^[5] Snowball v. Gardner Merchant Ltd [1987] ICR 719

^[6] Smith, D., (1987) The Everyday World as Problematic: a Feminist Sociology, Milton Keynes: Open University Press

^[7] Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective, London: Sage Publications, pp. 106-107

^[8] Temkin, J., (2002) Rape and the Legal Process, 2^nd ed., Oxford: Oxford University Press, pp. 10-12

^[9] McEwan, J., (2003) The Psychology of the Courtroom, Oxford: Oxford University Press

^[10] Evans, M. & Less, E., (2002) Real Bodies: a Sociological Introduction, Basingstoke: Palgrave

^[11] Amir, M., (1971) Patterns in Forcible Rape, Chicago: University of Chicago Press, pp. 259-276

^[12] Estrich, S., (1987) Real Rape, Cambridge: Harvard University Press, pp.24-25

^[13] Comments of Alliot J as quoted in Temkin, J., (2002) Rape and the Legal Process, 2^nd ed., Oxford: Oxford University Press, p. 49

^[14] Ward, C.A., (1995) Attitudes Towards Rape: Feminist and Social Psychological Perspective, London: Sage Publications, p. 27

^[15] Smart, C., (1989) Feminism and the Power of the Law, London: Routledge, p.437

^[16] Lees, S., (1993) Carnal Knowledge: Rape on Trial, London: Hamish Hamilton, p. 20

^[17] Quoted in Gavey, N., (2005) Just Sex: the Cultural Scaffolding of Rape, London: Routledge, p. 23

^[18] Walklate, S., (2004) Gender, Crime and Criminal Justice, 2^nd ed., Cullompton: Willan Publishing, p. 129

^[19] Kennedy, H., (1992) Eve Was Framed, London: Chatto and Windus

^[20] Hastings, B., (2004) An Empirical Study of Victim-Blame in Domestic Violence, London: Routledge

^[21] Hastings, B., (2001) Empirical Study of Victim-Blame in Domestic Violence, London: Routledge, p. 145

^[22] Hollies, K.L., (2004) Attribution of Blame and Responsibility in Domestic Violence, New York: Carson Publications, p. 25

^[23] Harlow, M.I., ‘What’s Love Got to Do with It: Blaming the Victims of Violence’ Journal of Violence and Victims (2002) vol., 17, pp. 234-247

^[24] Section 3 Homicide Act 1957

^[25] Hollies, K.L., (2004) Attribution of Blame and Responsibility in Domestic Violence, New York: Carson Publications, p. 72

^[26] Ellison, L. (2002) The Adversarial Process and the Vulnerable Witness, Oxford: Oxford University Press, p. 52