Racial Harassment, Sexual Harassment, and the Expressive Function of Law

Abstract

Employers who permit their workers to be racially harassed by third parties who are not fellow workers can be held liable for the detriment suffered by those who have been abused. In order for liability to arise, it must be shown that an employer (acting in accordance with good employment practice) could have exercised sufficient control over the workplace to prevent such abuse. That failures to exercise adequate control can ground liability was established by the Employment Appeal Tribunal (EAT) in Burton and Rhule v De Vere Hotels.' On both the level of moral principle and on a more pragmatic level, this decision has much to recommend it. On the former level, it can be regarded as serving to promote autonomy by providing those who wish to work with protection from racial abuse.2 On the latter level, the liability rule established by the EAT can (other things being equal) be expected to be economically efficient. This is because, in the context of the workplace, employers are, in a broad range of circumstances, in a position to provide protection from such a detriment more cost-effectively than anyone else.3 One feature of the Burton case is, however, questionable. Liability was not imposed on the individual whom the EAT identified as 'primarily responsible' for the detriment suffered by the two women: ie, the person who abused them (on the ground of sex as well as that of race).4 It will be argued below that, in imposing liability on this third party, the message that discrimination on grounds of race and sex is a wrong would have been conveyed more powerfully than by imposing liability on the respondents. Also discussed below are two possible means by which liability could be imposed on someone such as the abuser primarily responsible for the detriment suffered in Burton: viz, tort law (in the form of the rule in Wilkinson v Downton5) and criminal law (in the form of section 5 of the Public Order Act 1986). Finally, each of the proposed bases upon which to proceed against persons who engage in abuse such as that in Burton will be critically appraised from a perspective that (on the analysis advanced below) informs the EAT's decision. This is the victim perspective, which (on one account) is