CMS Expert Guide on sexual harassment in the workplace

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:

  1. the employee legitimately perceives as unwelcome, inappropriate or offensive; and
  2. 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
  3. 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.

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

The Austrian Equal Treatment Act treats the employer's failure to address and put an end to sexual harassment as itself sexual harassment. Hence, the employer is legally obliged to act if any charges of sexual harassment occur, but not to pro-actively engage in action to prevent sexual harassment. 

No, there is no explicit obligation for employers to take pro-active actions against harassment. Employers only have a general obligation to ensure equal treatment for all employees. However, it is in employers’ best interest to take the necessary steps preventing any kind of harassment, such as adopting internal policies and internal rules that explicitly prohibit harassment. 
Employers are obliged to investigate each complaint made by an employee regarding an alleged violation of their rights and obligations under employment law, which also involves sexual harassment in the workplace. 

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

No, there has not been a noticeable impact on the number of harassment cases against our clients, but we experience an increasing awareness of how damaging a company's failure to act swiftly and appropriately on sexual harassment allegations may be.

We have not noticed any substantial increase in the number of harassment claims in relation to the #MeToo movement. However, it is obvious that both employers and employees have become more aware of this topic. Employers often try to take a proactive approach towards the elimination of unwanted actions by their employees, and employees are more educated in terms of what kind of behaviour is unacceptable.

Employees may receive support from their works council or trade union, the Austrian Chamber of Labour, or the Ombudsman for Equal Treatment (“Gleichbehandlungsanwaltschaft”). All the bodies mentioned can initiate legal proceedings at the Equal Treatment Commission (“Gleichbehandlungskommission”). Additionally, the employee can claim compensation in front of labour courts.

The employee is entitled to a minimum compensation of EUR 1,000.00 for the personal detriment suffered. Moreover, any other financial loss must be compensated.

A victim of workplace sexual harassment might initiate legal proceedings against the harasser and demand that the harasser refrains from the unlawful conduct, remedy the consequences of the conduct, and provides the victim with appropriate financial compensation.

If the victim feels the harassment is a result of employer’s breach of their obligations to ensure equal treatment in the workplace, they can also turn to the Labour Inspectorate and claim that the employer is violating this  obligation.

Employees can also turn to the Ombudsman (Public Defender of Rights) who deals, among other things, with discrimination in the workplace. The Ombudsman can conduct independent inquiries in given matters and make informal proposals and recommendations, or in certain circumstances initiate court proceedings.

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

Tackling sexual harassment is of medium priority for our clients (amber). Our impression is that companies aim to deal with harassment cases professionally, given the increasing moral awareness and the increasing risk of reputational damage. There is an increasing appetite to quickly address allegations of harassment to avoid reputational damage and to minimise the physical and psychological stress of the individuals involved. Yet, we strongly advise clients to place more importance on measures to prevent sexual harassment.

“Amber”. Sexual harassment legal cases are rare and often unsuccessful. In addition, the legal regulation of sexual harassment does not contain any strict sanctions for the perpetrators or employers, and only covers the bare minimum which is demanded by EU law. The government also does not prioritise the topic and the victims of sexual harassment often face prejudice in general society. There is also a significant difference between international and domestic employers. The former tend to be more aware and educate their employees about the negative impacts and the various forms of workplace sexual harassment. 

6. Any other relevant information on workplace harassment?

The allocation of the burden of proof works in favour of the employee as the individual employee must only show the credibility of the harassment allegations. It lies with the employer to refute these allegations.