Sexual harassment is prohibited by the Austrian Equal Treatment Act (“Gleichbehandlungsgesetz”) passed in 2004 and by the Federal Equal Treatment Act (“Bundes-Gleichbehandlungsgesetz”) passed in 1993. Since then, there have been amendments due to European Union legislation. The rules in both acts follow the same scheme and address:
- sex-related harassment i.e. unwanted conduct related to the protected characteristic of sex;
- harassment of a sexual nature i.e. unwanted conduct of a sexual nature.
(Sexual) harassment is subject to the Equal Treatment Act if it (1) results in an intimidating, hostile or humiliating work environment for the people concerned or this conduct is aimed to do so, or (2) if it results in a less or more favourable treatment based on a person's rejection of, or submission to, sex-related harassment or sexual harassment.
Section 6 Austrian Equal Treatment Act prohibits harassment:
- by the employer,
- by a third party related to the employment,
- by a third party not related to the employment.
The Act also holds the employer liable if he or she fails to provide a remedy against (sexual) harassment.
The issue of sexual harassment in the workplace became relevant in relation to preparatory measures regarding the planned EU accession in May 2004.
Between 2004 and 2006, sexual harassment was covered by the Labour Code, which defined sexual harassment as conduct of a sexual nature in whatever form, which:
- the employee legitimately perceives as unwelcome, inappropriate or offensive; and
- intends or has the effect of reducing the dignity of the person or creating an intimidating, hostile, degrading, humiliating or offensive environment in the workplace; or
- might be perceived as a precondition for decisions that affect the exercise of legal rights and obligations arising from employment relationships.
The Labour Code in its current version, which has been in force since 1 January 2007, merely refers to the relevant clauses of Anti-Discrimination Act and does not regulate sexual harassment itself.
Currently, the main legal source prohibiting sexual harassment is the Anti-Discrimination Act, which has been in force since 1 January 2009. The wording of the Anti-Discrimination Act is very similar to the wording included in the Labour Code between 2004 and 2006.
The Anti-Discrimination Act defines sexual harassment as any unwanted conduct of a sexual nature which:
- is done with the purpose or effect of diminishing the dignity of a person and creating an intimidating, hostile, degrading, humiliating or offensive environment; or
- could legitimately be perceived as a precondition for decisions affecting the exercise of legal rights and obligations.