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.  

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.

The law prohibits harassment in the workplace including sexual harassment (Official gazette of Montenegro no. br. 030/12 and 054/16).  This law has been in force since 2012.

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. 

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.

Workplace harassment is known as “mobbing” in Montenegro. An employer and an employee are obliged to comply with the rules on prevention and protection against mobbing. An employer is obliged to provide an employee with work in the workplace and working environment under conditions that ensure that employee's dignity, integrity and health are being respected, and to take the necessary measures to protect an employee from mobbing.

Additionally, before entering into employment relationship with an employee, an employer is obliged to inform him/her in writing about its rights, obligations and responsibilities in connection with mobbing.

In order to prevent mobbing, an employer must implement certain measures (i.e. by providing information and organising training) with regards to causes, manifestations and consequences of mobbing.

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.

No.

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.

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.

In the event of being found to have committed the offence of mobbing, an employer may be fined between €500 to €10,000 (ii) the person responsible may be fined between €500 and €3,000 and (iii) an entrepreneur may be fined between €100 and €1,500.

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.

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.

Amber. 

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.

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.”

The law defines harassment (i.e. mobbing) as any active or passive conduct at work or in relation to work for an employee or group of employees, which is repeated, which is intended or represents a violation of the dignity, reputation, personal and professional integrity of the employee and which causes fear or creates a hostile, humiliating or offensive environment, deteriorates the working conditions or leads to the isolation of employees or results in them terminating their contract of employment or other contract on their own initiative (including encouraging or instigating others to do so). Mobbing behaviour includes sexual harassment.