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.