Evaluating Sexual Harassment Claims

• Author: Gail Erlick Robinson
• Pages: 1137-1145

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CHAPTER 53

Evaluating

Sexual Harassment Claims

Gail Erlick Robinson

I. INTRODUCTION

Despite the fact that the number of lawsuits related to sexual harassment is increasing, sexual harass-

ment continues to be an area of confusion and uncertainty. If an actual sexua l assault occurs, it is usually

obvious to everyone that harassment has occurred. In other types of harassment, what is seen as harass-

ment by some may appear to be harmless joking to others. Victims may appear to be hypersensitive to

innocent comments. Victims may add to this confusion by tolerating behaviours for long periods before

they nally report being harassed. Oenders may not set out to harass, but rather perceive themselves

as just being friendly or complimentary. Society itself has changed such that behaviour that might have

been tolerated, or seen as normal some years ago, is no longer seen as acceptable.

When an individual pursues a sexual harassment claim, an expert witness may be sought by the

plainti to explain the clinical underpinnings of sexual harassment and its possible consequences, as

well as the potential eects on a victim. e plainti or the defence may also engage an expert to assess

the alleged victim. Although it is not the job of the expert witness to prove the veracity of the complaint,

the expert may have comments on the credibility and reliability of the complainant based on a number of

factors, including pre-existing psychiatric diagnoses and consistency of the history. e expert will also

assist by describing the individual’s personality, situation and vulnerabilities prior to the alleged abuse,

explaining the individual’s psychological reactions and behaviour in response to the abuse, diagnosing

pre-existing or post-trauma psychiatric conditions, identifying consequences of the harassment and any

mitigating factors, recommending treatment, and making a prognosis.

e substantial increase in sexual harassment claims over the past twenty years likely reects the

increasing number of women in the workforce, as well as a trend in reporting these claims.

e goal of this chapter is to assist the expert witness in assessing alleged victims of sexual harass-

ment. It will rst review the legal denition of sexual harassment, human rights legislation and the

basic principles that have been established in previous trials. e chapter then discusses assessment of

the individual victim, including determination of credibility, specic consequences to the victim, reac-

tions and coping strategies, as well as treatment recommendations and the establishment of prognoses.

Specic challenges encountered in working with the plainti or defence are also noted.

II. SEXUAL HARASSMENT DEFINED

Generally in law, the term harassment denotes a series of comments or conduct that are unwelcome,

unwanted, oensive, intimidating, hostile, or inappropriate. e subject areas of harassing behaviour

include: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation,

disability, age, marital status, and/or family status.

A broad legal denition of sexual harassment was oered by former Chief Justice Dickson in Janzen

v. Platy Enterprises (198 9):