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 legal definition of harassment in the Mexican Federal Labour Law, last amended in 2019 (the “Labour Law”), is established in Article 3bis as “the exercise of power, in a subordinate relationship of the victim before the aggressor in the workplace, that is expressed in verbal or physical conduct, or both”.

Sexual harassment is defined as “a form of violence, where while there may be no subordinate relationship, there is an abuse of power that involves a state of defencelessness and risk for the victim, independently of whether it happens once or on various occasions”.   

In addition to the provisions contained within the Labour Law, the General Law on Women’s Access to a Life Free of Violence, last amended in 2018, repeats those definitions, which are expressly stated to apply in the workplace.

Finally, in December 2017, the Mexican Government published the “Action protocol against workplace violence, harassment and sexual harassment, targeted to companies in the Mexican Republic” (Protocolo de actuación frente a casos de violencia laboral, hostigamiento y acoso sexual, dirigido a las empresas de la República Mexicana) (the “Protocol”).

The purpose of the Protocol is to curate a healthy workplace environment within organisations. The Ministry of Labour and Social Security (Secretaría del Trabajo y Previsión Social), is to offer orientations, through non-binding mechanisms, that create an organizational culture where non-discrimination and dignity of all workers is respected.

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. 

Following 2019 amendments to the Labour Law, employers must publish workplace equality principles, implement a workplace anti-discrimination policy, and introduce measures to combat violence and sexual harassment.

Moreover, the Protocol promotes central objectives and values to achieve a work environment free from violence: 

  • Promote a healthy culture in the workplace, through actions that are aimed to prevent all types of workplace violence.
  • Establish a voluntary action mechanism in the event of workplace violence, harassment and sexual harassment.
  • Issue information to prevent workplace violence, harassment and sexual harassment.
  • Listen to, inform and guide the people who have been a victim of workplace violence, harassment and sexual harassment. 

The Protocol, along with the Labour Law, intends to protect the following principles: dignity and defence of the individual, harmonious and healthy workplace environment, equal opportunities and no discrimination, and confidentiality.

Another instrument available to organisations is the Mexican Standard on Labour Equality and Non-Discrimination (2015). This is a voluntary scheme which companies of any size in any sector can adopt. To be accredited under the Standard, companies are audited by an independent third party to verify that its practices and policies in the workplace comply with equality and non-discrimination requirements. The aim is to ensure that companies implement policies to prevent workplace harassment and ensure that gender perspectives are considered in the recruitment, selection, mobility and training processes.

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.

#MeToo gained traction on social media in Mexico, with many women involved in the media and entertainment industry in particular coming forward as victims of different types of harassment. As a result, the number of harassment claims against employers more generally has increased.

In the public eye, a media company director was dismissed for harassment in March 2019. An author accused by various women of sexual harassment had his book launch cancelled.

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.

The Labour Law outlines the following legal remedies:

  • Dismissal of employees committing harassment in the workplace without liability to the employer (Article 47);
  • Employees have the right to rescind their employment relationship with their employer and request indemnification payments where the employer, its family or representatives engage in harassment and/or sexual harassment within the scope of their work (Article 51);
  • Financial penalty of c. US$1,000 to US$22,000 against the employer that commits, enables or tolerates harassment or sexual harassment.

Employees have recourse to the Conciliation and Arbitration Boards in cases of workplace harassment. 

Article 259 bis of the Federal Criminal Code provides for a financial penalty of up to c. US$4,000 for anyone who takes advantage of their position in a workplace hierarchy in order to carry out sexual harassment.

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.

We would say Mexico sits in the amber scale. The scale of the problem had a significant impact on a political level, leading to the Ministry of Labour and Social Security issuing the Protocol. However, companies generally do not appear to be prioritising tackling sexual harassment as a matter of corporate governance policy.

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.

Whilst changes in the law in the last decade and, more pointedly, the #MeToo movement have raised public consciousness on sexual harassment in the workplace, it remains to be seen whether measures taken will be effective in preventing and punishing workplace harassment. Social media is providing a platform for victims to speak out, often anonymously for fear of professional or social reprisals.

Groups in various industries are coming together to create momentum, either by creating specific hashtags or social media accounts for their profession, to add impetus to the movement. For example, 70 employees at Grupo Reforma, one of Mexico’s largest newspaper companies, wrote a joint letter to the company’s Ethics Committee requesting an investigation into various accusations. Given that formal employment-related complaints to the Conciliation and Arbitration Boards take an average of 2-3 years to fully resolve, procedural barriers may dissuade victims from embarking on that path.