Image description: Woman holds a handwritten pink sign which reads ‘A woman’s body is not yours to take: I am a sexual abuse survivor and I will not be silenced’
Sexual harassment and cultural norms are inextricably linked. One need look no further than Cambodia’s Labour Law, which is not alone in conceptualising sexual harassment as a violation of female decency and modesty. However, at the level of international law, sexual harassment is understood as a violation of rights to equality and non-discrimination, not on essentialised gender stereotypes.
In June 2019, the first global instrument on gender-based violence and harassment (GBV/H) at work, the International Labour Organization (ILO) Convention 190 (C190) was passed. It supplements this non-discrimination framing with an Occupational Health and Safety (OHS) approach, which facilitates an incremental, participatory approach to transforming gendered cultural norms in the workplace.
While sexual harassment was not on the agenda in 1979 when the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) came into force, by 1990 General Recommendation 19, defined GBV as a violation of the right to equality, explaining that traditional stereotypical attitudes keep women subordinate at work and contribute to harrassment. CEDAW’s view of the harms of stereotyping is reflected in article 2(f), which obliges states to modify or abolish laws, regulations, customs, and practices which discriminate against women.
CEDAW is widely ratified, but there are numerous reservations to Article 2, which has been criticised for failing to take into account the evolving nature of culture, and the reality that women are not only casualties of culture, but also participants in it. This critique has resonance under the African Union’s Maputo Protocol which obliges states to take measures against practices and attitudes that are harmful to women, but also entrenches the right of women to live in a “positive cultural context and to participate … in the determination of cultural policies.” Celestine Nyamu explains that CEDAW’s view of culture as an impediment to equality might require women to displace their moral codes in order to access rights, and stands in contrast to that of the Protocol. She and others contemplate that gender equality norms should be integrated within – rather than entirely displacing – traditional practices.
Historically, the ILO also viewed sexual harassment as a violation of its non-discrimination convention, Convention 111, but in its non-binding writings also conceptualized it as a health and safety issue. ILO Convention 190, elaborates on this framing and is premised on the right to be free from violence and harassment, including gender-based violence. It establishes a central role for occupational health and safety, obliging employers to put in place not only workplace policies, but violence and harassment risk assessments to prevent GBV/H. The assessment obligations and policies also require employers to consult widely with worker organisations in order to be gender inclusive and responsive.
There is wisdom in extending existing OSH laws to prevent GBV/H. A Solidarity Centre project in the extractive sector in South Africa found that while GBV/H is the product of a misogynist culture, it is enabled by particular workplace arrangements: in their study, this included a darkened mineshaft, remote bathrooms, lone female miners travelling under-ground in over-crowded mine shafts. This research suggests that small, relatively cost-effective shifts in practice can often disrupt harassment, and work well in tandem with policies that seek to address the root causes of gendered violence and stereotyping .
Accordingly, C190 does not view GBV/H exclusively in OHS terms and also requires states to enact non-discrimination laws; indeed, the risk assessment should take into account hazards that arise from discrimination, abuse of power, and gender, cultural and social norms that engender violence and harassment, and take measures to prevent and control these. The notion of “preventing and controlling” hazardous cultural and social norms can be contrasted with CEDAW’s more absolutist position, obliging states to “modify or abolish” offending laws, regulations, customs, and practices. This C190 approach is arguably more consistent with an understanding of culture as constructed, evolving, and an important source of positive self-identification.
Nyamu writes that constrained cultural spaces can be eroded through protest, but also through the subtle institutionalization of divergent practices. The C190 practice of identifying workplace arrangements that enable GBV/H, while not directly “abolishing” discriminatory social norms, carves out space for women to participate in the conversation on what the right to be free from gender-based violence requires within particular workplaces. The institutionalisation of these conversations could result in changes to hazardous work arrangements which enable GBV/H, and importantly could also be “disruptive” to the cultures which sustain them.