What behavior qualifies as sexual harassment?
The employer’s obligation to prevent sexual harassment
Recurring reports on the subject highlight that sexual harassment is a widespread problem among female footballers in Norway. In fact, one in six players at the highest level of women’s football in Norway have faced inappropriate behavior from their coaches or other support staff. Given the significant societal problem of sexual harassment, this article aims to clarify what constitutes sexual harassment in Norway and discuss employers’ obligations to prevent such behavior.
What behavior qualifies as sexual harassment?
Before diving into an employer’s duty to prevent sexual harassment, it is necessary to have a clear understanding of what behavior constitutes sexual harassment. Under the Norwegian Equality and Anti-Discrimination Act, “sexual harassment” is defined as “any form of unwanted sexual attention which has the purpose or effect of being offensive, frightening, hostile, degrading, humiliating or embarrassing.
In short, the behavior must contain unwanted sexual attention. The broad definition may include actions such as:
- attempted rape;
- unnecessary touching;
- verbal remarks (for example, comments about the recipient’s body, clothing, or private life); And
- non-verbal behavior (for example, sexual innuendo or sexual body movements).
The attention doesn’t have to be motivated by sexual desire or overly sexualized. The assessment must be conducted objectively and can vary significantly from case to case, depending on the circumstances of the situation.
The term “unwanted” normally implies a request for the recipient to speak. This demand is not absolute, however. If a reasonable person should have understood that the attention was not reciprocated, it may be considered “unwanted” even if the recipient did not speak up.
Additionally, the sexual attention must have the purpose or effect of being embarrassing.
The wording illustrates that it is sufficient for the behavior to be perceived as embarrassing to the person towards whom the behavior is directed.
The term “embarrassing” sets the threshold for identifying sexual harassment, indicating that the behavior must be at least “embarrassing” or more to qualify. The following guiding points are relevant in the assessment:
- the person’s subjective experience – particularly whether it had negative consequences for the recipient;
- the nature of the action;
- the relationships between the parties – especially if there is a power difference between them;
- the time and place of the action; And
- whether the action has been extended or is in progress.
Time-relevant examples experienced by female soccer players include experiences of unwanted physical contact, such as pinching, hugging, and kissing against their will. If such treatment is severe enough or is applied systematically to the extent that it qualifies as sexual harassment, the treatment may result in unwanted work stoppage due to anxiety, depression and physical stress reactions. This is unfortunate, especially considering the significant underrepresentation of women in football.
The employer’s obligation to prevent sexual harassment
Fortunately, the Equality and Anti-Discrimination Act requires employers to prevent sexual harassment in the workplace. There are several ways for employers to fulfill this obligation. Key aspects include:
- clear policies and guidelines – employers should establish clear, easily accessible policies and guidelines that:
- define sexual harassment;
- describe prohibited behaviors; And
- offer advice on reporting procedures;
- training and awareness – employers should provide training and awareness programs to employees to inform them about sexual harassment, its forms, its effects and the importance of prevention;
- reporting mechanisms – employers should have a confidential and reliable reporting mechanism in place to report incidents of sexual harassment; And
- investigation and action – once a complaint is filed, employers are required to conduct thorough and impartial investigations to determine the validity of the claim. If harassment is confirmed, appropriate corrective action must be taken promptly.
Simply complying with legal obligations is a fundamental step. Managers must clearly take responsibility, facilitate open communication in the workplace, and implement continuing education programs to prevent the societal problem of sexual harassment. By taking proactive steps against sexual harassment, employers can help create a safer environment for female soccer players, which is a necessity given the need for every woman to participate on the soccer field.
For more information on this topic, please contact Ole Kristian Olsby to Littler Norway by telephone (+47 23 89 75 70) or by email ((email protected)). The Littler Norway website can be accessed at smaller.no.
