What constitutes as sexual harassment?
24 July 2020
Following the article recently published in OnboardOnline about sexual harassment in yachting (link below), written by one of our PYA Directors, Lynne Edwards, we have put together the following guidelines on what exactly constitutes as 'sexual harassment' and the steps to follow if you are, unfortunately, a victim.
What procedure should be taken when a crew member feels that they have been sexually harassed from both their point of view & that of the captain?
Quite simply, any incident should be immediately reported to the HoD or Captain – and these incidents recorded, using a clear, standardised reporting procedure stating time and circumstances etc., so that fear of reprisals is minimised/ eliminated. It will also alert anyone in authority to both serial offenders and to those crew members who may be (unwittingly) attracting sexual harassment, perhaps because of their behaviour/demeanour - or who are being unnecessarily sensitive (perhaps to gain attention).
Management companies should be immediately alerted and the perpetrator dismissed, if the accusations are valid. There should be zero tolerance of Sexual Harassment on any yacht and a standardised procedure for authentic complaints to be reported and recorded without recrimination.
So, it begins with awareness of what Sexual Harassment is
Enforced implementation of procedures and policies to be followed for reporting and recording incidents in order to minimise the occurrences of sexual harassment (and bullying) and a zero tolerance policy put in place.
Have a dedicated person on the crew who can review any allegations
What constitutes as sexual harassment?
Sexual harassment is a form of sex discrimination. The legal definition of sexual harassment is: “Unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.”
Now, let's break this down:
First of all, conduct is not sexual harassment if it is welcome! For this reason, it is important to communicate (either verbally, in writing, or by your own actions) to the harasser that their conduct makes you uncomfortable and that you want it to stop. In other words make a stand for yourself if you feel you are being sexually harassed. But by the same token, be aware of your own behaviour, passing remarks, glances and so on which might be interpreted by others as signals from you welcoming attention.
"Conduct Of A Sexual Nature"
There are three different kinds of conduct - verbal, visual or physical - which, if it is of a sexual nature, may be sexual harassment, IF the behaviour is unwelcome and if it is severe or pervasive. Some examples might be:
"Verbal or written"
Suggestive comments about someone's clothing, personal behaviour or a person’s body; sexual or sex-based jokes; requesting of sexual favours or repeatedly asking a person out; sexual innuendoes; spreading rumours about a person’s personal or sexual life; threatening someone.
Assault; impeding or blocking movement; inappropriate touching of a person or a person’s clothing; kissing, hugging, patting, stroking, pinching.
Looking up and down a person’s body; derogatory gestures or facial expressions of a sexual nature; following someone.
Posters, drawings, pictures, screensavers or emails of a sexual nature.
NB: It is also interesting to note that non-sexual conduct may also be sexual harassment if you are harassed because you are female, rather than male, or because you are male, rather than female. For example, it may be sexual harassment if you are a young woman working as a deckhand in an otherwise all-male deck crew and you are the only one whose tools and equipment are frequently hidden by your male co-workers, or similarly for a steward working in an all-female interior crew department.
“Severe or Pervasive”
The conduct of the harasser must either be severe or it must be pervasive to be sexual harassment. A single incident is probably not sexual harassment unless it is severe. For example, a single incident of rape or attempted rape would be sexual harassment (and would also violate criminal laws). Although a single unwanted request for a date or one sexually suggestive comment might offend you and/or be inappropriate, it may not be sexual harassment.
However, a number of relatively minor separate incidents may add up to sexual harassment if the incidents affect your work environment. Some questions you can ask yourself to determine whether the conduct is pervasive are: How many times did the incidents occur? How long has the harassment been going on? How many other people were also sexually harassed?
"Affects Working Conditions or Creates a Hostile Work Environment"
If you are fired, refused a promotion, demoted, given a poor performance evaluation, or reassigned to a less desirable position because you reject a sexual advance, that almost certainly is sexual harassment. Even if the conduct does not result in economic injury or change of status to your job, it may be sexual harassment if the conduct unreasonably interferes with your work performance or creates an “intimidating, hostile, or offensive work environment.” For example, it may be illegal sexual harassment if repeated sexual comments make you so uncomfortable at work that your performance suffers or if you decline professional opportunities because it will put you in contact with the harasser.
Remember that sexual harassment is against the law in accordance with the 1964 Civil Rights Act. Laws against sexual harassment are designed to protect you from your boss, (yacht owner/captain), your co-workers or the guests who come aboard – and note – both men and women can be sexually harassed. Someone of the same or opposite sex can sexually harass you.
NB: Retaliation is also against the Law
Not only is sexual harassment against the law, but so is retaliating against someone for complaining about sexual harassment or for participating in an investigation of sexual harassment. Examples of retaliation include the example whereby you complain about sexual harassment and you then lose your job, although the harasser continues to work; or your employer (owner or captain) retaliates against you for complaining about sexual harassment or for participating as a witness in an investigation of sexual harassment.
Read more: OnboardOnline article by Lynne Edwards.
Please note, this article is intended to provide guidance to yacht crew and is not legal advice. For personalised advice based on your unique situation, we advise consulting a legal professional.
Please contact the PYA if you would like to be put in touch with a legal adviser. Email: firstname.lastname@example.org
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