What is sexual harassment?
Take a look at these scenarios and think about what what your opinion is:
Is it sexual harassment?
A performing artist in a freelance assignment regularly hears from his production manager that he has such a great body. She looks him up and down as she compliments the outfit. When they plan a tour, she jokes that the two can share a hotel bed.
A young musician who has just signed with a record company is told to be more sexy and sensual in their style of dress and on stage to create more attention.
It's a summer party and hot weather. A production assistant is wearing a dress. "Wow, are those your own tits?" a colleague asks within everyone's earshot. Many look over at her.
Is it sexual harassment?
There is often disagreement and differing views about what is and isn't sexual harassment. People often don’t completely agree with others' interpretations of these scenarios, and there are many different factors that help to determine whether something is considered sexual harassment.
Because there is a lot of disagreement and different opinions, it can be difficult to talk about sexual harassment, and not least to report your own experiences.
To make this easier to talk about, we can look at the definition in the legislation.
The Equality and Anti-Discrimination law § 13 defines sexual harassment as:
Unwanted sexual attention that has the intention or effect of being offensive, intimidating, hostile, degrading, humiliating or harassing
One of several key words here is unwanted.
What constitutes sexual harassment is not necessarily about actions per se, but rather about the fact that the action is undesirable.
For example, a neck massage is often very good if you want a neck massage. If a colleague sneaks in and gives an unsolicited neck massage at work, it can be something quite different.
Reciprocity is crucial.
Equally important are the key words intention or effect.
Obviously, if the intention is to offend others with your behaviour, it is likely that what you are doing is harassment. But it may also be that one does not intend it, but still commits sexual harassment because the behaviour had the effect of being unpleasant to others.
You can often hear "It was just a joke!", "I did not mean anything by that". But the law does not require intent.
The preparatory work for the Likestillings- og diskrimineringsloven states:
In assessing whether there is harassment, considerable emphasis must be placed on the subjective experience of the person who is exposed to the words or action.
The law is based on a subjective experience: how was it experienced by the victim? What was the effect?
It may seem difficult to relate to, and sceptics may say, "how in the world am I to know what is right and not for others?"
Because you can not know, you simply have to be cautious about what you do and say. We all have different boundaries. What is OK for me is not necessarily OK for others.
The law emphasises the victim's experience. Nevertheless, cases of sexual harassment are assessed according to several criteria.
Dependency
To what extent is one party dependent on the other?
In a workplace, there are always degrees of dependence because we are dependent on the income we get from our job and thus dependent on us being allowed to keep the job.
Some are more dependent on being in the leader's favour, others have a safer position.
Power and hierarchies in a workplace can be both formal and informal and less visible.
Frequency
Maybe it's okay the first time a colleague makes a joke about you, but if it happens day after day, it can make everyday work difficult.
In the case of repeated harassment, the threshold for what constitutes harassment is lower than in the case of one-off incidents, because:
Unwanted sexual attention over time brings with it an additional burden, in that the person who receives the attention must not only respond in some way to the action when it occurs, but also risk of being exposed to unwanted attention again.
Severity
How offensive or how unpleasant is the behaviour for the victim?
How does context help to shape and potentially enhance the experience of unwanted sexual attention?
What repercussions and consequences does the action bring?
If, for example, the victim is reported sick as a result of harassment, this can be aggravating.
Sexual harassment can take many forms. Here are some examples:
Verbal: Sexual comments, insinuations, jokes and questions, unwanted comments on body and appearance, nicknames, repeated invitations to go on a date or repeated attempts at asking about or initiating sex, spreading rumours
Physical: Neck massage, touching clothes, hair or body, squeezing, kissing, stroking, standing too close or rubbing up against another
Non-verbal: Showing sexual images and videos, imitating sex with body and hand movements, winking, blowing a kiss, wolf whistling, giving gifts
Digital: Sending nude photos, sexual images or sexual text messages, sharing sexual images
Sexual harassment occurs in many different ways, and can have different degrees of severity and character. It can be everything from annoying comments to serious sexual abuse. The degree of severity determines the right course of action when cases are to be handled.
Sexual acts without consent and sexually abusive behaviour are illegal under Penal Law. There are separate penal provisions that prohibit such action and it should be reported to the police.
Offensive, intimidating, hostile, degrading, humiliating or harassing behaviour is illegal under the Working Environment Act and the Equality and Discrimination Act. Such cases is employers' responsibility to handle and resolve. Such cases can also end up in a civil case either against the person who has harassed or against the employer who has not fulfilled their duty for maintaining a safe environment.
In addition, there may be grey areas with behaviour that may not be illegal, but which may nevertheless be harmful to a safe working environment for everyone. The goal of preventive work is to clarify how one wants life in the industry to be like, and create a common understanding and common awareness of where the boundaries are.
Hard to talk about
Why don’t everyone report sexual harassment?
Reporting is often stressful. You fear not being believed. You don’t want the attention that can follow a case. You fear conflict and division. Reporting sexual harassment can also be particularly stressful because you may have to talk about intimate details. Maybe you’ll have to retell vulgar language. Naturally, that can be uncomfortable.
Where can you get help in cases of sexual harassment?
You can get free guidance from an experienced lawyer via Balansekunst's advisory phoneline. The phoneline is for people who have experienced, witnessed or have questions about sexual harassment, discrimination and abuse of power in the arts and culture industry. Employers who want advice on handling cases can also use the advice line.Balansekunst's advisory phoneline
You can also get advice from the Equality and Anti-Discrimination Ombud.
From 1 January 2020, it became easier to report and process cases of sexual harassment. You can now report to the The Norwegian Anti-Discrimination Tribunal. It is free.
If you are the victim of something that is punishable under Penal Law, this can be reported to the police.