Discriminatory Harassment

8 Dec, 2017
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Comparative Legal Analysis

The author of the analytical article: Ekaterine Lomtatidze; The cases were translated by Ekaterine Lomtatidze, Elene Kaikhosroshvili, Giorgi Dvaladze, Nino Janashia

The present research explores the law of harassment in different countries, the history of the concept and relevant standards of EU and the Council of Europe with regards to harassment. This research aims to provide a critical analysis of the respective Georgian legislation or mostly the lack of it and to identify the issues, which should be considered in the process of drafting of legal regulation of harassment.

The history of the development of the concept of harassment shows that it emerged within the law of non-discrimination in the United States, while it was the psychological studies related to mobbing which triggered the attention to the phenomenon in the European countries and led to the focus on the violation of dignity. Despite the different paradigms developed in the US and Europe, the concept of harassment has first emerged as part of the labor law in both places.

The EU Directives broadened the scope of the prohibition of harassment and as a form of discrimination, it is also prohibited in the sphere of access to and supply of goods and services in public and private sectors. The members of EU, which were bound to transpose these Directives into the national law, had adopted the respective legislation. Now they prohibit harassment, which is related to the grounds of discrimination enlisted in the Directives and involves unwanted conduct, with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. The comparative analysis of legislation of other countries demonstrates that the harassment regulation may conflict with the constitutional interests in the protection of freedom of expression and principle of legality of punishment.

The risk of such conflict calls for particular attention in the process of law-making on harassment in Georgia. If the scope of the legal regulation will be clear and the balance will be stricken with the conflicting interest of freedom of expression, the prohibition of harassment will clearly play an important role in the protection of groups undergoing discrimination on different grounds from the violation of their dignity.