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 first legal definition of sexual harassment was introduced in the French Labour Code in 1992. It has since been modified several times. A 2012 law currently defines sexual harassment as:

• repeated sexual remarks or behaviours affecting someone’s dignity because of its degrading or humiliating nature, or creating an intimidating, hostile or offending situation;
• pressurising someone with the intent of getting sexual favors for oneself or for someone else.

In addition, since 2015, the French Labour Code prohibits any sexist behavior affecting the dignity of an employee or creating an intimidating, hostile, degrading, humiliating or offensive working environment.

Finally, since 2019, in companies employing at least 250 employees, someone has to be appointed as a “sexual harassment officer”. In every company that has a Social and Economic Committee, such an officer is also designated by the Committee from within its members.

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. 

The employer has a general duty of care regarding their employees’ mental and physical health. Since 2012, this obligation includes the prevention of sexual harassment in the workplace.

Companies must implement policies to prevent sexual harassment and to manage these situations promptly, should they arise.

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.

According to the Department of Justice, a year after the #MeToo movement, sexual harassment cases increased by 35%. This increase may also partly be due to the capping of damages in unfair dismissal cases, since this cap is not applicable when the dismissed employee is a victim of harassment.

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.

No employee can be dismissed for having been a victim of, or having refused to be, a victim of harassment or for testifying about the existence of such acts.

Such a dismissal is null and void, and the employee has to be reinstated and is entitled to a minimum of 6 months’ salary as compensation, with no cap.

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 is now a core issue for many companies, especially since the French Government has made gender equality a top priority and strengthened companies’ obligations on this specific matter.

As an example, more than twenty corporations signed a joint charter on sexual harassment in the media sector in March 2019.

The #MeToo movement made some companies realise they cannot ignore this matter as it can have significant consequences for the people involved as well as their image and reputation.

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.

When dismissing an employee who allegedly harassed his or her coworkers, companies have to be cautious about the burden of proof that lies on them: most often anonymous evidence is not enough in court if the employee challenges the grounds of his or her dismissal.