VIOLENCE AGAINST WOMEN

 

Sexual Harassment is a form of sexual abuse and unwanted sexual attention. Sexual harassment should not be confused with regular social relations between co-workers. It is behavior that is coercive, forced, threatening or unwanted. It is the act of someone bothering you by saying or doing unwanted/unwelcome things of a sexual or gender associated nature. Such as touching inappropriately, making insulting jokes or remarks about women, men or same sex couples, making sexual demands or suggestions, staring at or making unwelcome comments about you body, displaying sexually offensive pictures, being verbally abusive to you because of your gender, and physical assault.

Sexual harassment it most often directed towards women and can sometimes lead to violence.  Sexual harassment is often an attempt by one person to exercise power over someone else.  Most frequently perpetrated by a supervisor, co-worker, landlord or a service provider.  People who harass others usually play it off as if they are teasing or joking around with that person. 

            The most important thing to point out is if it is mutual, or one-sided. Are both people comfortable with it? If one person feels ashamed threatened or uncomfortable by sexually charged exchanges, that is harassment. It can make the work environment very stressful for the person being harassed. It can happen in an office, on the plant floor, in staff rooms or washrooms. Very often, men and women have different views of informal sexual interchanges like joking and flirting. This is because our society generally treats women as objects that are available for men's pleasure.

 

 

What is Sexual Harassment?
Sexual harassment is unwanted attention of a sexual nature by a person(s) who knows or ought reasonably to know that the attention is unwelcome to the recipient(s). Dalhousie defines sexual harassment as “any sexually-oriented behaviour of a deliberate or negligent nature which adversely affects the working or learning environment. It may involve conduct or comments that are unintentional as well as intentional.” Thus, it is defined by the impact of the behaviour on the recipient, not the intent of the perpetrator. Sexual harassment is discrimination on the basis of sex, sexual orientation and/or gender and is prohibited under the Nova Scotia Human Rights Act.

There are two types of sexual harassment, poisoned environment and quid pro quo.

POISONED ENVIRONMENT

Poisoned environment sexual harassment discriminates against individual(s) on the basis of sex, gender or sexual orientation by creating an intimidating, hostile and/or offensive environment. This is the most common type of sexual harassment. It usually involves a pattern of persistent or repeated behaviour such as crude or offensive jokes, sexual comments, displays of offensive material and/or stereotyping on the basis or gender or sexual orientation. For example:

QUID PRO QUO

Quid pro quo means “this for that”. It involves implied or expressed promises of reward for complying with sexual solicitations or demands or implied or expressed threats of reprisal or actual reprisal for refusal or failure to comply with sexual demands. This type of harassment is usually initiated by a person(s) with power over a person(s) with less power. Thus, the recipient is in a vulnerable position. It may take the form of an overt offer or involve subtle pressure. For example:

In Dalhousie’s Policy, sexual harassment includes, but is not limited to:

a.       sexual solicitation or advance of a repeated, persistent or abusive nature made by a person who knows or ought reasonably to know that such solicitation or advance is unwanted;

b.      implied or expressed promise of reward for complying with a sexually-oriented suggestion;

c.       actual reprisal or denial of opportunity, or an expressed or implied threat of reprisal or denial of opportunity, for a refusal to comply with a sexually-oriented suggestion;

d.      sexually-oriented remarks or behaviour on the part of a person who knows or ought reasonably to know that such remarks or behaviour may create a negative psychological or emotional environment for work, study or participation in a University-related activity or program.

The Nova Scotia Human Rights Act states that “no person shall sexually harass an individual” (section 5[2]). It defines sexual harassment as (section 3[o]):

        I.            vexatious sexual conduct or a course of comment that is known or ought reasonably to be known as unwelcome,

II.            a sexual solicitation or advance made to an individual by another individual where the other individual is in a position to confer a benefit on, or deny a benefit to, the individual to whom the solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome, or

III.            a reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.

The Act prohibits retaliation against persons who have brought forth complaints of sexual harassment. “No person shall evict, discharge, suspend, expel or otherwise retaliate against any person on account of a complaint or an expressed intention to complain or on account of evidence or assistance given in any way in respect of the initiation, inquiry or prosecution of a complaint or other proceeding under this Act” (section 11).

SEXUAL HARASSMENT CAN INCLUDE

VERBAL:

NON-VERBAL/NON-CONTACT:

PHYSICAL CONTACT:

SEXUAL HARASSMENT IS NOT

Sexual harassment does not mean that sexuality or sexual issues must never be discussed in a work or study area or that they cannot be areas of legitimate academic inquiry. Discussions of scholarly research on sexuality in the classroom, for example, would not normally constitute sexual harassment. However, when discussion of sexuality is inappropriate in content or presentation style to the setting or the individuals involved, this may create a situation in which sexual harassment may ensue.

 

WHO GETS HARASSED?

Most persons who are sexually harassed are women, but anyone, regardless of gender, age, education, employment status, sexual orientation, cultural background, race, ethnicity, ability or disability, ancestry or religion, can be harassed. Sexual harassment is sometimes intertwined with other forms of harassment so, for example, women who are disabled or who are part of a visible or cultural minority may be more at risk than others.

Dalhousie’s policy states “sexual harassment can occur between individuals of the same or different status, and both women and men can be the subject of sexual harassment by members of either gender. It can involve individuals or groups and can occur during one incident or over a series of incidents involving single incidents, which, in isolation, would not necessarily constitute sexual harassment”.

Sexual harassment is often not, or not only, about sex or sexual attraction, but is about power. It involves an abuse of power by a person with greater employment, academic or social power over someone with less power. Individuals who are perceived to have less power because of their employment, academic, economic or social standing may be more vulnerable to harassment than others.

 

The Canada Labour Code and Sexual Harassment

The Canada Labour Code applies to those who perform a function or duty on behalf of the government of Canada. This includes most federal Crown Corporations and federal Special Operating Agencies; private businesses which are necessary for the operation of a federal Act. It also applies to federal undertakings or businesses

Definition of "sexual harassment"
247.1 In this Division, "sexual harassment" means any conduct, comment, gesture or contact of a sexual nature

Right of employee
247.2 Every employee is entitled to employment free of sexual harassment.

R.S., 1985, c. 9 (1st Supp.), s. 17.

Responsibility of employer
247.3 Every employer shall make every reasonable effort to ensure that no employee is subjected to sexual harassment.

 

SOURCES AND INTERPRETATION OF NORMS

Sources of norms

 

In every legal system, laws form a hierarchy. The constitution takes precedence over statutes, and statutes usually take precedence over rules issued by the executive or government agencies. In countries with common law, statutes take precedence over it. “Taking precedence” means that the higher law prevails in the event of conflict. The courts, as the main interpreters of law, must decide whether laws conflict. Judges make law indirectly by interpreting statutes or codes. Another way that judges make law is by finding a conflict between laws and setting aside the lower-level law.

Constitutions are necessarily general and vague, so their interpretation is especially problematic. The power to review legislation for its constitutionality gives courts the power, in principle, to set aside laws enacted by the legislature. This power is potentially dangerous because it brings judges into conflict with the elected representatives of the nation. The extent to which this power is exercised varies greatly from one country to another. In the United States, the federal courts have few limits on their ability to strike down laws that, in the courts’ opinion, contradict the constitution. Some of the most profound laws in America have been made by courts interpreting the constitution, as in Brown v. Board of Education in 1954, which eventually ended laws mandating racial segregation of schools. In other countries, such as Great Britain, the courts do not have the power to review statutes for their constitutionality, and the courts never strike down legislation as unconstitutional. The scope of constitutional review, which is fundamental to the power and prestige of courts, has no necessary connection with whether the country’s legal tradition is common or civil law.

 

 

Interpretation of rules

 

(WHAT IS TEXTUALISM? By Caleb Nelson Virginia Law Review April, 2005 91 Va. L. Rev. 347)

Broadly speaking, the possible goals of statutory interpretation can be divided into three main categories: (1) goals connected with enforcing the "speaker's intent"; (2) goals connected with enforcing the "reader's understanding"; and (3) goals external to the communication between speaker and reader, such as promoting sound policy, making our legal system as coherent as possible, or keeping the costs of the interpretive process within manageable bounds. "Intentionalists" commonly associate themselves with the first set of goals; emphasizing that statutes are mechanisms to convey the policy decisions of the people whom we have elected to legislate for us, intentionalists call upon courts to try to enforce the  directives that members of the enacting legislature understood themselves to be adopting. "Textualists," by contrast, commonly associate themselves with the second set of goals; emphasizing that statutes have serious consequences for people outside of the legislature and that people should not be held to legal requirements of which they lacked fair notice, textualists suggest that interpretation should focus "upon what the text would reasonably be understood to mean, rather than upon what it was intended to mean."

Standard formulations of the distinction between "textualism" and "intentionalism" center on this alleged difference in goals. But scholars who have closely examined the Supreme Court's recent output have noticed that prevalent styles of judging do not really track these categories. It does not follow that there are no  differences between the judges whom we think of as textualists and those whom we think of as intentionalists. The most important differences, however, are not really captured by the standard ways we talk about them. Textualists and intentionalists alike give every indication of caring both about the meaning intended by the enacting legislature and about the need for readers to have fair notice of that meaning, as well as about some additional policy-oriented goals. Indeed, it is not even clear that textualists and intentionalists disagree about the proper mix of these different kinds of goals; other differences in outlook could readily account for the battle lines that we currently observe. In this sense, debates about the fundamental goals of statutory interpretation are superfluous to the divide between judges whom we consider textualists and judges whom we consider intentionalists.


Interpretation of norms of equal hierarchy

 

(a)    If statutes appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later enacted statute governs. However, an earlier enacted specific, or special, prevails over a later enacted general statute unless the context of the later enacted statute indicates otherwise. (1st both are valid if possible, 2nd later in time prevails, 3rd exception to 2nd: specific prevails over general even if specific is earlier than general, unless the general later says otherwise).

 

http://www.law.upenn.edu/bll/ulc/fnact99/1990s/usrca95.htm