Med vilken rätt till skydd? - Om synen på sexuella trakasserier i arbetslivet, tystnadskultur och arbetsgivarens roll vid skapandet av schyssta arbetsplatser
Sammanfattning: During the Autumn of 2017, the #metoo movement sprung across Sweden with a deafening amount of testimonies of sexual harassment taking place in the quiet on work places across the country. The debate that started in the wake of this movement is still going on, albeit with less intensity, has been said to constitute a paradigm as to what kind of behaviors we will accept in our future working environment. Many argue that we will never see a culture of silence imprint work places in the way previously seen. The purpose of this paper is to examine and problematize the regulation in place when it comes to provisions on the working environment, sexual harassment as a form of discrimination and the obligations that can be derived from it. This will constitute the basis upon which I discuss whether expectations such as the ones displayed in the debate can be considered justified and legitimate and the legal means that can be used to terms with the culture of silence manifested by the movement. The point of departure in this respect is that such a culture of silence is a real explanation to that fact that such a wide spread phenomenon long has gone unseen. After a brief introductory chapter establishing the basis of the study, I move on to examine the regulation in the discrimination act, the provisions concerning sexual harassment and in what way the employer’s responsibilities is articulated. Particularly attention is paid to the rules on the burden of proof, which as of late has come to be questioned. The third chapter concerns the regulation on the working environment, and is focused upon the goals of and means to the preventing work that is to be undertaken by the employer. A discussion on victimization at work is held, and I briefly touch upon the roles of other parties engaged in the preventive work: the Swedish Work Environment Authority, the discrimination Ombudsman, safety representatives and the labour market parties. In the closing chapter of the paper, my conclusions are presented. The findings include that the regulation on sexual harassment appears to be theoretically satisfying, but in practice, certain problems arise. Among other things, the requisite that the harasser has gain awareness about the fact that his or her behavior is offensive and the interpretation and application of the rules on the burden of proof. Furthermore, the #metoo movement has resulted a long list of actions taken to ensure a safe and healthy work environment, but also that the regulation clearly is designed for and adapted for the time of the introduction in the mid 1970’s. A key feature of a successful work towards healthier and safer work places is a constantly ongoing adaption to new conditions. Lastly, I present a few brief suggestions for further measures.
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