Sexual harassment in the workplace

Since the adoption of provisions stated in the Directive 2002/73/EC of the European Parliament and the Council of the European Union, dated 23 September 2002, prohibiting discrimination based on sex as regards access to employment, vocational training, promotion and working conditions, sexual harassment has been considered to be a form of sexual discrimination.
The term of sexual harassment is defined in general as any form of verbal, non-verbal or physical behaviour of a sexual nature, which harms the dignity of men and women at work. According to the current legislation concerning equal treatment of men and women for the majority of the E.U. Member-States, any act of sexual harassment is prohibited when committed in the workplace by an employer, an employee or a third person.

Legislation

Indicatively, in Belgium sexual harassment is prohibited under the Act of Men and Women of 7 May 1999 as regards access to employment and the Act of 11 June 2002 regarding the protection of employees against violence, harassment and sexual harassment.

In Denmark the legislative definition of sexual harassment, on the grounds of the Council Resolution of 29 May 1990, covers acts of sexual harassment committed by an employer or an executive empowered to act on behalf of the employer in the workplace or even during a job interview. On the contrary, sexual harassment committed by an employee is not covered by the current legislation.

Sexual harassment in Finland is prohibited under the Finnish Act on Equality Between Women and Men (609/1986). The aim of this Act is to prevent discrimination on the basis of sex, promote equality between women and men and improve the status of women particularly in working life.

In France sexual harassment is prohibited under Article L.122-46 of the Labour Code (derived from Law 2002-73 dated 17 January 2002 on “Social Modernization”, which came into force on 21 January 2002). The Article applies to employees or applicants for employment, work placements or a training course, who have been subject to, or who have protested against, acts of sexual harassment. However, no hierarchical relationship or abuse of authority in the workplace is necessary for sexual harassment to occur. Furthermore, it is not necessary for the victim to complain of any specific order, threat, constraint or duress. On the other hand, it has been held that the expression of amorous feelings does not constitute sexual harassment, even if they cause discomfort to an employee.

In Germany Sec 2 par. 3 of the current legislation for employment (Beschäftigtenschutzgesetz) intends the efficient protection of employees against sexual harassment, provides that sexual harassment constitutes a breach of an employee’s duties stated in the employment contract, or a disciplinary offence. In all cases, the employee may still be entitled to make a complaint of discrimination on the grounds of sex even after the employment relationship has come to an end.

Within the framework of the labour legislation in Italy, there are no specific provisions concerning acts of sexual harassment, although the gap may be filled by implementing of the employment-related Articles 2087, 2043, 2049 or 2059 of the Civil Code, in addition to the present provisions of certain national collective agreements. According to the Italian case law, any kind of sexual approach may be considered sexual harassment, if the behaviour is deemed unwanted.

The Luxembourg Parliament adopted a law on sexual harassment in labour relationships, which came into force on 4 July 2000. The object of the law in question is to ensure the prevention of acts of sexual harassment and to grant the victims of sexual harassment legal rights, especially with regards to termination of their employment contracts.

In the Netherlands Section 4 of the Working Conditions Act 1998 (Arbeidsomstandighedenwet) requires the employer to have a policy, which protects employees against sexual harassment as well as against aggression and violence in the workplace. A complaint-handling procedure should be a part of this sexual harassment policy. If the employer’s neglect to follow a concrete sexual harassment policy threatens to seriously damage the health of employees, the employer may even be charged with a criminal offence.

As far as the legislation of the United Kingdom is concerned, although sexual harassment is not expressly referred to in the Sex Discrimination Act 1975, case law has established that sexual harassment will be treated as direct sex discrimination, while the definition of sexual harassment commonly used in case law comes from the 1991 European Commission Code of Practice on the Dignity of Men and Women at Work.  The Law concerning the protection of employees against sexual harassment in the workplace, which came in force on 16 June 1997 and was amended on 20 December 2000, states as punishment a maximum 5-year imprisonment for every undesired, repeating sexual behaviour or contact.

In Spain, the crime of sexual harassment was at first standardized in the new Penal Code of 1995 and was amended by the Law 11/1999, dated 30 April 1999. In addition, the current legislation requires the employer to adopt appropriate measures to prevent these risks in accordance with Articles 4.2. d and 19.1 of Workers Statute (ET) and the Spanish General Social Security Act (LGSS). Treatment of an employee by colleagues and superiors in a way that violates the above principle is also prohibited and may even be considered as a criminal offence (Article 314 of the Criminal Code).

Finally, in Greek legislation the proper act of sexual harassment has not been typically penalized up to present, since there are no specific legislative provisions treating exhaustively such cases. Article 8 of the Collective Agreement on Terms of Remuneration and Working of Insurance Company Employees in Private Sector, dated 20 June 1997, specially defines the term of sexual harassment as the "imposition of undesirable sexual demands that are exercised in the context of an unequal service or power relationship". Article 17 of the National General Collective Agreement, dated 23 May 2000, provides that "employers must refrain from any action that could be considered as an infringement of the personality of employees, including sexual harassment". Moreover, according to Article 4 par. 2 of the Law 3488/2006 (Official Journal Nr. 191, issue A, dated 11 September 2006) regarding equal treatment and elimination of all types of discrimination, "harassment and sexual harassment constitute an act of discrimination based on sex and are therefore prohibited. The fact of rejecting or subjecting to such sort of behaviour cannot be used as a basis for adopting a decision which may affect the person in question".

Burden of proof

In conformity with the national legislation of the aforesaid states, a split burden of proof applies in cases of sexual harassment. If the employee establishes facts before a court from which it may be presumed that there has been sexual harassment, then the employer will have to prove that there has been no breach of the principle of equal treatment. The harasser may incur criminal, disciplinary and civil sanctions. These are determined according to the law, the peculiar nature of the harassment and the circumstances of each case. Acts such as verbal advances and gestures, invitation to sex, touching of private body parts, dirty jokes as well as showing of pornographic pictures have been held to constitute sexual harassment: generally speaking, any kind of sexual behaviour may be considered to be sexual harassment, if the behaviour is deemed unwanted.

Sanctions

In accordance with the provisions mentioned above, the employer is under an obligation to promote systematically equality between women and men in the workplace and, if the employer fails to do so, he/she may be held liable of generating a working environment of discriminations. An employee victim of sexual harassment is entitled to claim compensation against the employer, in any case, accordingly to the nature of the discrimination and the specific circumstances of each case. Apart from the compensation claimed, an employer may be considered guilty for any moral damage suffered by the victim of harassment and receive the respective punishment stated by the provisions of the national legislative framework of E.U. Member-States.

Supervised by Vasiliki Meleti, Executive Assistant.