The wrath of the #MeToo movement is sweeping through occupation after occupation. The frustration – to make an understatement – rests on the memory of degrading events. But it is also to do with how little help and understanding was offered at workplaces, or from the police or prosecutors.
The culture of silence which rules is based on how people are convinced that filing a report often turns into a boomerang which comes back to hurt the person who reported in the first place. The strength in the opposition to treating women equally and respectfully at workplaces should not be underestimated.
So what can prevent a backlash after #metoo? Legislation and collective agreements are some of the tools that need to be developed.
There was a time when sexual harassment ‘didn’t exist’ in Sweden. Yes, in real life it of course existed, but without a name the phenomenon was invisible. It was like that long into the 1980s.
The Equal Opportunities Ombudsman (Jämställdhetsombudsmannen, JämO) demand that protection should be introduced in gender equality laws was met with long, strong resistance. An example:
In an opinion piece published in Dagens Nyheter (DN) on March 26th, 1996 the JämO was accused of “spreading myths about sexual terror” in order to get more money in their pocket. The attack was linked to the creation of a provision in gender equality laws that employers should work to prevent sexual harassment
That this abuse of power was given a name in Swedish (sexuella trakasserier) – a translation of the English sexual harassment – resulted in the positive change of women starting to report sexual harassment. In the cases there was a pattern, reflecting the power structure of workplaces. It was often easy for the employer to move the woman on while the man remained in his position. Power is a key concept in research on sexual harassment.
Legal sociology research shows that laws brought in to remedy structural shortcomings must be backed up with effective supervision and sanctions. If that support is lacking, anomalies are normalised. Think about road traffic and zero tolerance. How would things look without supervision of traffic laws and without road maintenance?
In the area of discrimination there are three protective barriers which have to function if the normalisation of sexual harassment is to cease.
1. Workplace norms
Complaints about sexual harassment must be investigated in a professional way. Preventative work that makes it possible to complain about harassment without the risk of reprisals must exist. Here, employers’ organisations have a major responsibility to communicate knowledge to their members about how standards and guidelines should be formulated.
2. Collective agreements shoud be established on how sexual harassment investigations should be conducted, and the rights and protections which should be observed.
To an extent this exists today in workplace environment laws, but it is not enough. Various parties in the labour market must sit at the negotiation table and work on a collective agreement on sexual harassment. Damages payments for breaking the collective agreement are a powerful sanction which work.
3. The Equality Ombudsman (Diskrimineringsombudsmannen, DO) must take every report seriously, investigate them and through arbitration or the legal system when necessary, attempt to find the right solution for the person who made the report.
As a consequence of inadequate regulation on what the DO should do, the current DO has reorganized its activities away from the investigation of reports, in the direction of working more on information and advocacy. Last year 131 reports of sexual harassment in the workplace and education were made. Only a fraction were investigated by the DO.
Dissatisfaction with how few have been given help by the DO after filing a report has led to a government investigation. In the “Better protection against discrimination” report it was proposed that a new state authority should be created alongside the DO, creating a committee to which discrimination can be reported.
The committee would not be able to hand out sanctions but could propose adequate solutions, and would stick to only written evidence. It would be modelled on the National Board for Consumer Disputes (ARN).
But oral evidence is almost always needed if a discrimination case is to be properly investigated. Imagine if the sexual harassment of the sort that has emerged from the #MeToo movement was reported to the new committee, then guess how many of the cases opened would continue after the accused perpetrator was heard from. The issue is whether it is really reasonable to compare discrimination with consumer complaints like a delayed flight. The proposal for a new committee to tackle reports of discrimination belongs in the bin.
It’s the DO who should give those who have suffered from discrimination the chance of redress. As things stand right now, Sweden is in breach of both EU law and UN guidelines for how an authority of the DO’s kind should work.
Culture and Democracy minister Alice Bah Kuhnke should as soon as possible address the creation of rules in the anti discrimination laws which detail the DO’s duty when it comes to reports of discrimination. The independence of an authority like the DO should be dictated through well thought-through rules for what the authority should do – not through every new boss testing out their own ideas on how the DO’s work on discrimination issues should be carried out.
This is an opinion piece written by legal sociology professor Lena Svenaeus, who was Sweden’s Equal Opportunities Ombudsman between 1994 and 2000. It was translated to English from the original published by Sydsvenskan.