Sexual harassment in the workplace in Germany

Sexual harassment in the workplace is prohibited under Section 2 (1 lit. 1 - 4) of the General Equal Treatment Act from 2006 (Allgemeines Gleichbehandlungsgesetz).The legal definition of sexual harassment in Section 3(4) of the General Equal Treatment Act is “unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, which takes place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment”.

Since 2016 sexual harassment in the form of physical contact can be a criminal offence under Section 184i of the Criminal Code and is punishable by imprisonment of up to two years and/or a fine.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

According to section 12 (1) of the General Equal Treatment Act employers must take preventive measures to protect employees from sexual harassment. However, it is not specified in the legislation which measures the employer ought to take. Measures could include training and company agreements. The law outlines in section 12 (3) of the General Equal Treatment Act a variety of appropriate measures which may be taken against an employee who harasses their colleague, including moving, relocating or dismissing the employee. When employees are sexually harassed by third parties in the performance of their duties, under section 12 (4) of the General Equal Treatment Act the employer shall take suitable, necessary and appropriate measures, chosen in a given case, to protect the employee in question.

3. Has the #MeToo movement had a noticeable impact on the number of harassment complaints made against your employer clients?

Awareness of sexual harassment issues has increased considerably as a result of #MeToo. Behavior patterns that are even close to sexual harassment are taken seriously. Complaints are taken seriously, and the vast majority of companies are vigorously pursuing complaints brought to them by employees – both in terms of investigation and prosecution. In practice, however, termination without notice and criminal charges are the exception due to a lack of corresponding incidents. According to the first comprehensive report of the Federal Anti-Discrimination Agency, there has been an increase in complaints against colleagues.

According to Section 13 of the General Equal Treatment Act, employees have the right to lodge a complaint to the competent authority of the company if they feel they have been sexually harassed. According to Section 16 of the General Equal Treatment Act, the employee may not be disadvantaged in this regard. In addition, under section 14 of the General Equal Treatment Act, the employee affected by sexual harassment has the right to refuse to work without loss of pay if the employer does not take any measures, or takes obviously inappropriate measures, to end the sexual harassment at the workplace.

Under section 15 (1) of the General Equal Treatment Act an individual that has suffered harassment in the workplace has a right to make a claim for damages (material harm, i.e. loss of earnings) and compensation (non-material harm, injury to feelings) against the employer and against the individual employee who has harassed them. The employer is only liable for harassment of his employees or third parties if he is at fault. This is not usually the case when harassment first occurs. However, in case of reoccurrence, the employer is liable, if they failed to take appropriate measures to protect the harassed individual against sexual harassment. The fault of the employer is presumed in section 15 of the General Equal Treatment Act.

If the employer is at fault, a contractual claim for damages against the employer may also be considered.

If the harassment injures the person concerned in his or her health or general personal rights, the injured person can claim damages and failure from the harasser according to the Civil Code.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

Green to amber.

The institution Forsa conducted a survey in which 24% of the women interviewed said they had been sexually harassed in the workplace. 44% of these employees dealt with incidents by talking to the accused person, their supervisor or by informing the works council. However, the remaining 56% chose not to take any action.

Most of the DAX 30 companies do not state any concrete numbers regarding sexual harassment. Only two companies (Beiersdorf, Continental) reported a total number of 13 cases for 2018. Experts are certain that only a small number of victims report harassment, let alone file complaints to a labor court.

Companies increasingly want advice on preventive measures against sexual harassment in compliance structures. This includes the various steps a client can take in order to prevent sexual harassment and to change the "climate" in the company. This will usually be a tiered, "escalating" model in which several components such as a code of conduct, an ombudsman or a whistleblower hotline are integrated.

6. Any other relevant information on workplace harassment?

The Federal Anti-Discrimination Agency in a 2019 study reported that “approximately one in eleven gainfully employed persons has been affected by sexual harassment at the workplace within the last three years.”

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

The same study explained “there is a high risk of sexual harassment in all sectors. As far as this was possible given the low number of cases, the present study shed more light on certain sectors. According to the study, the sectors most affected are health and social services (29%), manufacturing (11%), trade (12%), transport (6%), water and energy supply as well as childcare and education (10%).”

Women are more often confronted with sexual harassment than men. The annual report of the Federal Anti-Discrimination Agency shows that in only 13 cases (out of 193) men were harassed.

In our experience, sexual harassment more frequently affects women who are in subordinate positions to the perpetrators. Direct verbal or physical assaults are usually isolated incidents and often occur at meetings outside working hours but in a company context, e.g. at company celebrations, under the influence of alcohol, or during professional team-building measures. Not to be neglected, however, is retaliation against employees for rejecting sexual advances or harassment, e.g. by obstructing their career advancement or discriminating in salary rounds.