Same-Sex Sexual Harassment in Employment

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Queen's Law Journal. Volume 26, Number 1 (2000), p. 101-142.


The author examines how courts and tribunals have dealt with the issue of same-sex sexual harassment. By exploring both Canadian and American jurisprudence, she identifies the two principal conceptual models that have been used by courts and tribunals in defining and identifying same-sex sexual harassment: the differential treatment model and the sexual content model. She eventually rejects both in favour of a model based on substantive equality. The differential treatment model looks for harassment that would not have occurred but for the complainant's sex. While this is helpful in working environments that have employees of both sexes, it is not helpful in addressing sexual harassment in single-sex working environments or where complainants are of both sexes. Conversely, the sexual content model looks to whether the conduct creates a sexually charged atmosphere, for example through jokes and other sexual comments. The author argues that this approach is also insufficient in single-sex workplaces or where the sexual content is not explicitly discriminatory. The author instead opts for an approach based on substantive equality. Such an approach, rather than looking at the nature of the harassment or at the sex of the complainants, focuses on the effects of the alleged harassment. By taking into account the social context of the harassment, the substantive equality approach effectively eliminates the problems with the other two models and addresses the discriminatory nature of all sexual harassment.

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