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‘It’s not the women’. Addressing sexual harassment in the workplace

Dr Ineke Boerefijn, Coordinating Policy Advisor, Netherlands Institute for Human Rights

Widespread sexual harassment in talent show triggers debate in society

On 20 January 2022, an impressive episode of BOOS (the Dutch word for angry) was launched on YouTube. The documentary concerned the talent show The voice of Holland. Journalist Tim Hofman interviewed dozens of former candidates, who reported how men holding various positions in the show had sexually harassed them. Allegations ranged from sexist comments to rape. Since then, a number of women have turned to the police, who are currently investigating the reports. Most men involved are famous artists and musicians. Broadcasting of the show was immediately cancelled. The documentary is available in Dutch only. However, the matter has also been commented on in international media. Summaries and comments can be found, inter alia, in the online magazine Dutch News and in The Guardian.

TV producer John de Mol, responsible for The Voice until 2019, was also interviewed by Hofman. Watching him responding to the questions was a clear illustration of the fundamental change of culture that is necessary to put an end to all forms of violence against women. In his view, neither he, nor his company could be held responsible for the occurrence of the misconduct and violence, or for the fact that he had not taken any action against the perpetrators. He had, after all, established procedures that anyone who felt harassed could use. In his view, when women do not report what happens, he cannot be aware of misconduct and therefore cannot be expected to take any action. He called on women to not be afraid and come forward. He explained the absence of reports of abuse by the fact that women feel some sort of shame that prevents them from speaking out. The next day, a full page ad was printed in a national journal, stating ‘Dear John, it’s not the women. Greetings, the women of your company.’ In response, De Mol stated it was never his intention to blame the women. Maybe not, but he did.

Media attention prompts women to speak out

This documentary and its aftermath made headlines in Dutch media for quite some time. Since the documentary became available online, many more women who have participated in talent shows and other TV programmes came forward with similar reports. The police called on the women to turn to them to file their reports, rather than to the law firm that ITV studios had asked to examine the matter. Hotlines have been established where women can report their experiences and seek help and advice. The Sexual Assault Centre reported a huge increase in requests for help, also by women who were assaulted years ago, in many different contexts. Clearly, the documentary has significantly contributed to an increased awareness of what constitutes sexual harassment, its prevalence in society and the impact it has on women. Perhaps society at large is more inclined to acknowledge the seriousness of sexual harassment after having seen and heard the women who shared their experiences on TV. After all, in the past years many more reports of sexual harassment were shared, mostly in newspapers. For example, there were well-documented articles on sexual harassment in (higher) education. And more recently, Ajax director Marc Overmars resigned when it became public that he had sexually harassed women in the workplace.

Investigation into sexual harassment in the Netherlands

In October 2021, the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) published the results of an investigation into sexual harassment in the workplace. It paid particular attention to reporting misconduct and the obstacles thereto and the way in which employers handle complaints. In the past ten years, 16% of all employees experienced sexual harassment. Women are twice as often a victim as men; most perpetrators are men, in particular when women are harassed. In most cases, the incident is not reported to anyone in the workplace. Various reasons were found for this. In many cases, victims were not sure whether the treatment they had met with was serious enough to qualify as harassment. Also, many victims did not know whom to turn to, feared that they would not be taken seriously, would be blamed for being (partly) responsible or preferred to leave the matter behind. The majority of victims who reported the harassment were positive about the effect of reporting. They felt relieved after speaking out, or observed that the perpetrator was spoken to about the conduct, or that measures were taken to prevent similar incidents in the future. However, other victims had negative experiences. The perpetrator was not spoken to, the harassment did not stop or the victims suffered negative consequences. It was concluded that there is much room for improving the handling of complaints by employers.

Towards a different culture?

In response to all reports and the calls for action, by inter alia, the Netherlands Institute for Human Rights, that called upon various ministers, the government appointed Mariëtte Hamer in a newly created position. As from 1 April 2022 she will be the independent government commissioner, specifically charged with addressing sexual misconduct and sexual violence. Her mandate is to strengthen the actions against sexual misconduct and sexual violence and to stimulate the change in culture which is necessary to prevent and combat sexual misconduct. The government will draft a national action plan which will deal with preventing and combating sexual harassment and sexual violence. It has announced that the action plan should contain a coordinated and comprehensive approach of sexual misconduct and sexual violence and that gender sensitivity should be a guiding principle. The letter to Parliament refers to sexual misconduct and sexual violence in all areas, including in the domestic sphere. Therefore it does not explicitly cover all forms of violence against women. It does however, call for a change of culture. This could be beneficial to all forms of violence against women, including domestic violence that is not sexual violence.

Coordinated, comprehensive gender sensitive approach

The Netherlands Institute for Human Rights has welcomed the appointment of the government commissioner. The Institute has repeatedly called for better coordination of policies and practices concerning violence against women, and pointed to the obligation to apply a gender sensitive approach, as laid down in the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and in the ILO Violence and Harassment Convention (ILO Convention No. 190). The Netherlands has ratified the Istanbul Convention, and signed, but not yet ratified the ILO Convention. The aim of both treaties is to guarantee the right of women to be free from violence. Both oblige States parties to take measures to prevent violence, protect victims, prosecute perpetrators when a crime has been committed and to adopt co-ordinated policies.

Added value ILO Violence and Harassment Convention

The Netherlands Institute for Human Rights has urged the government to ratify and implement the ILO Violence and Harassment Convention Convention, as it offers additional protection to women in the workplace. Sexual harassment is prohibited by law, including in the Equal treatment legislation, legislation on working conditions and in criminal law in case of grave misconduct such as sexual assault and rape. The Convention requires that protection is extended to workers in the informal economy, such as domestic workers and self-employed workers. Further, the Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work inter alia during work-related trips, training and social activities, in employer-provided accommodation and when commuting to and from work.

Preventing sexual harassment

As was confirmed by the Netherlands Institute’s research referred to above, there is a need for awareness-raising and better handling of complaints by employers. The concrete and detailed obligations in the ILO Convention are therefore most welcome. States shall adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work. Among other things, they must adopt and implement a workplace policy on violence and harassment and identify hazards and assess the risks of violence and harassment and take measures to prevent and control them. In an expert meeting organised as a follow-up to the Institute’s research, further concrete tips were shared. For example, employers should make sure that they are aware of the culture prevailing at the workplace and make sure that it is a safe place for all employees.

Protect victims and provide for complaints mechanisms

At present, there is no legal obligation for employers to provide for access to a confidential counsellor. Such an official will constitute a low-threshold facility for employees to turn to for consultation. This will contribute to early action being taken by the employer, and help prevent further negative consequences for employees who are harassed. Having a low-threshold procedure to discuss misconduct is a necessity. Again, the prevailing culture can constitute an obstacle. In the above-mentioned case of the Ajax director, it was reported that ‘The macho culture at Amsterdam football club Ajax made it impossible for women who worked there to speak out about unacceptable behaviour.’

On the basis of labour law and the equal treatment laws, employers are responsible for guaranteeing an adequate and effective mechanism to handle complaints. It is required that such a mechanism is fair, transparent and diligent. Research shows that it is crucial that the victims of harassment are taken seriously, their experience should not be downplayed and they should not be judged while reporting their experience. Also the person against whom the complaint is made should be treated fairly and be heard. It is also crucial that the outcome of the procedure is properly communicated to the persons involved, including whether any sanctions have been taken.

Criminal law

The events also drew attention to the question which forms of misconduct constitute a criminal offence. Aspects discussed in particular concerned the severity of the behaviour and the question of consent. Which behaviour crosses the line of the Criminal Code? The current criminal law provisions on sexual violence contain a high threshold for behaviour to be qualified as sexual assault or rape, since the definition requires that there is evidence of coercion. A number of women have filed complaints of rape and sexual assault with the police, so this may lead to prosecution of some perpetrators. The judge will then examine whether the circumstances of the case were of such a nature that there was coercion within the meaning of the criminal code.

The provisions of the Dutch Criminal Code do not meet the standards of international human rights law, including the Istanbul Convention. Article 36 of this Convention requires States parties to criminalise sexual acts which are performed on another person without her or his freely given consent and which are carried out intentionally. A new law is currently being drafted, and is for advise with the Council of State. The draft text contains thoroughly revised provisions on rape and sexual assault and criminalises sexual acts performed without consent. In addition, the draft law proposes to criminalise sexual harassment in public places. Implementation of the law will take quite some time, it is envisaged not to take place before 2024. Civil society organisations have called on the minister of Justice to speed up the process in order to provide better protection against sexual violence.

The revised law will indeed constitute a major step forward towards better protection against sexual violence. However, it is imperative that the implementation of the law is accompanied by proper training of all law enforcement officials and other professionals dealing with victims of sexual violence. A serious concern is that the number of specialised law enforcement officials is at present insufficient. As a consequence, too much time passes between reporting an offence to the police and the trial of the suspect. The entry into force of the new criminal provisions is likely to lead to an increase in reports to the police. If they do not have the capacity to process these cases timely and carefully, this will be detrimental to the victim. The minister of Justice has announced that the introduction of the new provisions of the Criminal Code will be accompanied by an awareness-raising campaign.

Momentum for fundamental change to prevent and combat violence against women

Having worked on the issue of violence against women for so many years, never before have I been as confident as I am now that times are changing. Never before has the issue of violence against women been discussed as broadly as in the past month. The phrase: ‘women are not to blame’ is repeated time and again. Many joined the Women’s March on 5 March in Amsterdam, demanding attention for violence against women, in particular femicide. Numerous individual women – and men – have spoken out against violence. At the same time, women’s right to be free from violence continues to be violated in private, in public – online and offline – on a daily basis. We are definitely not there yet. The appointment of the government commissioner, the future national action plan and the revision of the Criminal Code can constitute significant steps in the right direction. Awareness of misconduct is growing, as is awareness that it is not the women who are to blame. There is a role for the government, employers and society at large. The culture change that is a prerequisite to address the underlying causes of discrimination against women and violence against women will not take place overnight.

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