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On law and “Lose the Lads’ Mags”

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So last week UK Feminista and Object issued a joint press statement, announcing they’d received legal advice that women working in shops that sell “lads’ mags” may be able to sue their employers for sexual harassment or sex discrimination. A number of bloggers have already given incisive critical responses, and I’ll particularly point you in the direction of Stavvers from Another Angry Woman, Gemma Ahearne from plasticdollheads and Jem and Carter from It’s Just A Hobby.

I’m coming to it a bit late myself, but that’s because I was hoping to be able to base my response on the legal advice the two groups received. I should have been able to base it on that legal advice – or at least a summary of it – according to this snippet from the press statement:

UKFemail

So, last Monday evening I sent them this email:

UKFemail2

By Friday morning, I hadn’t heard anything so I followed up with this tweet:

to which I unfortunately have had no reply, though they’ve been active on Twitter since then and have responded to other people’s tweets. So either they aren’t really making the summary available, or they’re being very selective about who they make it available to – which raises its own questions.  The press release (and the corresponding Guardian letter, signed by a number of British lawyers) are fairly clear about what they believe to be the legal basis for action – the Equality Act 2010 – and how they think the shops may fall afoul of it by selling lads’ mags, so I have to wonder what exactly is in the summary that UK Feminista are holding back.

The Guardian letter makes reference to “examples of staff successfully suing employers in respect of exposure to pornographic material at work”, so perhaps the advice contains actual details of those examples, and maybe unsuccessful attempts as well – which would be useful in assessing what criteria are needed to make out an actual case of sexual harassment or sex discrimination. You’ll notice that the letter is carefully couched in equivocal terms – sale and display of the magazines “may” breach the Equality Act; “is capable of giving rise to breaches”; “in some cases”. I’m not sure those caveats come across as clearly in the press release, in which Kat Banyard announces:

The good news is that customers and employees don’t have to put up with it any more. Legally as well as ethically, lads’ mags are well past their sell by date.

As Carter and Stavvers pointed out, the effect of such an unqualified assertion could very well be to mislead some shop workers into thinking they have a case when they don’t – and that could have disastrous consequences for their job security if they were to act without benefit of proper legal advice. As an occasional campaigning-group-press-release-writer myself, I understand that bold statements make better copy, but I wish they’d given some consideration to the fact that there are actual jobs at stake here which most of these workers can probably ill afford to jeopardise. A certain amount of responsibility has to go along with imparting legal advice, whether it’s your own or somebody else’s. And I don’t think that’s a very responsible statement for Kat Banyard to make.

As to the legal advice from the lawyers – or at least, what I’m able to see of it – all I as a non-British-lawyer can do is look at the statute and the case law. The Equality Act 2010 prohibits direct and indirect discrimination, the latter applying where

A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

… “sex” being one such protected characteristic.

There’s another section about Sex Equality (Section 64) but it deals with pretty much what it says it deals with, i.e., equal terms and conditions of work. Which would certainly be breached if female employees were singled out for sexual harassment, and may be the reason the letter and press statement refer to discrimination and not just harassment alone. On the other hand, they may be applying the Catharine MacKinnon notion of pornography itself as a discriminatory act – what she described in Only Words as “subordinating women through sex”. The problem with this is that it rests on a series of assumptions which would all need to be accepted for this approach to succeed: that lads’ mags are pornography; that pornography does subordinate women; that the impact of this is sufficient to overcome the rights of the publishers to produce, the stores to sell and the buyers to purchase these materials. It’s not a terribly solid foundation to build a case on, which I imagine is why the letter mostly just highlights the harassment angle.

So let’s turn to that. Under Section 26 of the 2010 Act, harassment occurs where:

(1)(a)    A engages in unwanted conduct related to a relevant protected characteristic, and
(b)  the conduct has the purpose or effect of
(i)violating B’s dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b)

I don’t think you have to agree with UK Feminista and Object to understand, in theory, where they see the lads’ mags fitting in here. But it’s important to read the section in full, because it goes on to say:

(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.

What this basically tells us is that displaying and/or selling the lads’ mags cannot constitute harassment in and of itself – even if a shop assistant feels her dignity has been violated, even if, and I think it is rather a big if, the sale of the magazines is what has given rise to the hostile or offensive environment she experiences. All the circumstances have to be looked at in the round, and each case will be judged on its own merits.

Which is why I really wish I had precise details of the cases the legal advice is based on. Most of the case law I’ve found predates the Act, though I don’t see any pertinent change from the previous law. There certainly are examples of successful actions against employers for exposure to porn in the workplace, but not in a context where the porn was a product being sold by the employer. So I’m not sure how much use those cases would be in the type of case we’re discussing here. For one thing, there is more scope for a conflict of rights here, since compelling an end to these sales would impinge on the publishers’ freedom of expression (as well as free movement of goods and services, if there’s any cross-border element involved). Given the huge deference that the ECHR and the EU give to member states to regulate sexually explicit material, I don’t think this would necessarily be the biggest legal hurdle, but it would be an additional one that wasn’t present in the earlier cases.

There’s also a strong possibility that the Employment Tribunals would distinguish between the circulation of images that are in no way related to a person’s actual work, and the sale of magazines by a shop whose business it is to sell magazines. I realise this has the whiff of “what did you expect when you took that job” and that can be problematic for a lot of reasons, not least that the people who work in these shops often don’t have a lot of alternatives. It is, nonetheless, a point on which the tribunals could distinguish this case from the precedents, and I think they’d be likely to seize on it. Unless women on staff are somehow being targetted for abuse with these magazines – in which case the issue really is the abuse and not the magazines themselves – I would expect the Tribunal to fall back on the “other circumstances of the case” provision. If it didn’t – if it held that a worker was sexually harassed by the mere sale and/or display of these magazines – then it would cease to be just an employment tribunal, and overnight would become a national press censor. This is just the type of scenario in which judicial bodies tend to put their hands up and say it’s up to Parliament, not them, to make that call.

I don’t entirely accept the slippery slope argument made by some other critics of the campaign. And again, this is because of the judiciary’s ability to distinguish between what might seem like analogous cases before it. It’s entirely possible, and indeed it happens all the time, that a court or tribunal will refuse to apply its own previous reasoning – not because it doesn’t follow logically, but because it would have undesirable consequences. If an Employment Tribunal did rule that a woman was discriminated against by having to sell Nuts, it doesn’t mean they’d then have to find a religious fundamentalist was discriminated against by having to sell Gay Times. Where the slippery slope might apply, though, is in the decisions made by individual shop owners or chains: if a UK Feminista/Object victory had the effect of emboldening other groups, as it surely would, pulling anything that causes controversy may well be the more desirable option from a commercial/convenience standpoint.

“Lose the lads mags” campaigners can’t pretend this is unlikely, either, because this sort of self-censorship is exactly what they’re aiming for. I’m not sure if they believe they could actually win a case, but they might have an impact just by threatening to bring one. How much of an impact remains to be seen (though I’m inclined to predict “not much”). One thing’s for sure anyway: just as a successful No More Page 3 campaign would still leave us with a vile rag called “The Sun”, losing the lads mags would still leave the women who work in these shops with a myriad of other problems – and dare I say it, more pressing problems, or at least they were more pressing when I worked in a shop – such as low wages, long hours, little or no job security and, yes, sexual harassment, the kind you can’t get rid of just by pulling a magazine from the shelves. I’d like to think that if they win this campaign, UK Feminista and Object will stick around to help these women fight to overcome those problems too. But I suspect they’ll just move on to the next sexy press release.

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About Wendy Lyon

Fighting a lonely battle for evidence-based policy and the proper use of apostrophes.

10 responses »

  1. Your commentary sounds very much like sour grapes .

    Reply
  2. What those sour grapes are I wouldn’t have a clue. But I can see many problems that may or may not apply in the UK. The one that bothers me most is the idea of prior restraint. You are denying the writers and readers the chance to decide for themselves what they write or read, by blocking something before it is even printed. I think that can be done in the UK, but as a former journalist/photographer I am very happy that here in the U.S. the ability to do that is very limited. Once it is decided that somebody can block publication then we are headed down the road to government censorship.

    Yes, I understand how offensive these publications can be, but my right to be offended ends where the other parties’ right to free speech begins. And that is truly a good thing, a lot of worthy articles challenging the status quo would have never seen the light of day if a judge (likely male) got to determine whether it could be published or not.

    Most magazines of questionable content are bagged in plastic with a white panel covering everything but the masthead ere in the U.S. If the publishers’ of the “lad’s magazines did that in the U.K. that would pull the plug on shop girls being offended by handling them. And that is a compromise I’m willing to make. In an ideal world there would be no reason to print this stuff, but this is not an ideal world. How about we work on attainable goals instead of shooting for the moon? That’s my personal opinion anyway.

    Reply
  3. Pingback: Dangerous Dolls: ‘Object’ and Lose the Lads’ Mags | plasticdollheads

  4. pornography exposure is seen as sexual abuse – especially in cases involved with children. Involuntarily exposing children to pornographic material (when picking them up in a shop) could by something to be argued. Being exposed to sexually explicit material without your consent – I’m not sure how that applies within the law. And I have no idea why they are not replying to you.
    I think it would be better to tackle it from a variety of angles. For instance, if exposure to these magazines shows a drop female employees ability to do their job well this could be another angle.
    As for stopping readers and writers content, this to me, is not the issue – but the covers displayed are. Sainsbury’s actively took the time to put black plastic covers on all their lads’ mags. Only the problem was customers were not putting them back afterwards and the company unfortunately stopped using them altogether.

    There are 2 issues here.

    1. A lot of women and men don’t like the objectification of women in these magazines and they want it to stop altogether
    2. Many who actively avoid these types of publications/material cannot avoid them completely due to them appearing in shops, this includes young children.

    Stopping the magazines altogether is a type of censorship. But whether that censorship is good or not is debatable and too much for one campaign to tackle. It needs a change in consciousness, similar to the use of black face in comedy. People changed, it wasn’t funny anymore and it wasn’t wanted – so the use of it stopped. If we want publications to stop we as a society need to outgrow them. That issue cannot (imo) be tackled by a single campaign.

    However, No.2 can, safely be tackled. And there doesn’t even have to be censorship involved. All it would need is for these mags to be sold behind the counter or their covers to be properly concealed from the public. Public space should be family friendly space, since all members of society inhabit that space. You could argue that the internet is also a public space but THAT is another matter altogether imo – the internet is a total different ball game, It is both private and public space and is completely uncensored. We don’t want our public spaces to be this way – else you’ll have naked people walking around, public copulation, debates in the street which quickly turn into arguments.

    There is a LOT of self censorship that goes on in public spaces and that is a good thing. Its good for a civilised society. This self censorship comes from the sense of shame. With anonymity there is no shame, so no self censorship. The internet isn’t quite as civilised yet – if every post had the persons age attached to it I think much of what we see on the internet would not be taken as seriously and possibly we would take parenting a lot more seriously!

    Reply
    • To be honest, I didn’t even bother addressing the issue of customers suing for harassment over the mags because that strikes me as so unlikely to be successful, it isn’t even worth addressing. A customer has far more options than an employee and in most cases could just take their custom somewhere else. And the mags are pretty easy to avoid in the average shop, too. I could go shopping every day for a month and never encounter them. I certainly don’t see any customer objection that couldn’t be addressed by a black plastic cover, and monitoring the magazines area to ensure the covers stay on.

      Reply
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  6. Pingback: On law and “Lose the Lads’ Mags” | Sex Worker Blogs

  7. Pornography with its use of violence against women – choking, gagging, hair pulling, double entry and gang sex – language of contempt (b+tch, sl+t, c+nt) and promotion of child abuse (barely legal, babysitter and other categories) is indeed a real problem as anyone that has studied sociology and the role of media fanned hatred would tell you. Opening up soft porn for sale clearly visible to children in a family supermarket is grooming. If you as an adult showed porn to a child it would be a legal offence. With 1 in 3 girls in UK schools being subject to sexist attacks and 2 in 3 having experienced gender based hate speech, think its time for this social experiment to stop.

    Reply
  8. Actually, there are plenty of sociologists who don’t believe porn is the problem you think it is. How do your statistics compare with countries where magazines like these are not freely available?

    Anyway, the subject of this post is the legal aspects of the campaign, not whether the magazines themselves are a good or a bad thing. I haven’t looked up the UK definition of “grooming”, but I seriously doubt you’d have any more luck bringing the display of lads’ mags under that law than Object and UK Feminista have had bringing it under sexual harassment.

    Reply

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