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 Protection from Harassment Act (Cap. 256A) (“POHA”) came into force on 15 November 2014 to protect persons against harassment and unlawful stalking and to create offences and provide civil remedies in relation to the same. On 1 January 2020, the POHA was amended to include protections against and offences in respect of “doxing”, which refers to the act of publishing private or identifying information about a particular individual.

The object of the POHA is not the prevention of workplace or sexual harassment per se, but to provide a statutory instrument protecting persons against harassment in general. 

Section 3 of POHA provides: 

No person shall, with intent to cause harassment, alarm, or distress to another person, by any means -

  1. use any threatening, abusive or insulting words or behaviour;
  2. make any threatening, abusive or insulting communication; or
  3. publish any identity information of the target person or a related person of the target person,

and as a result causing the target person or any other person (each called in this section the victim) harassment, alarm or distress.

Section 7 of POHA provides that “An individual or entity must not unlawfully stalk another person” and sub-section (3) provides some examples of acts or omissions associated with stalking.

The Ministry of Manpower describes workplace harassment as “behaviour that causes or is likely to cause harassment, alarm or distress to another party” and cites sexual harassment as an example. 

The Penal Code (Cap. 223) also contain provisions relating to offences involving words or gestures intended to insult the modesty of a woman and assault or use of criminal force to a person with an intent to outrage the person’s modesty. 

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. 

There are no strict legal requirements for employers to take action, but the Government has issued various recommendations or “advisories” to encourage employers to take the initiative in preventing workplace harassment, including sexual harassment. For example, the Tripartite Advisory on Managing Workplace Harassment (“Tripartite Advisory”) contains guidance on the prevention of harassment in the workplace, including a sample harassment prevention policy for use by employers. The Tripartite Advisory also provides useful information on how employers can implement reporting and response procedures as well as guidance on the investigation procedures they can put into practice.

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.

Since the advent of the #MeToo movement, we have seen an increase in the number of harassment claims cited by our employer clients. These cases tend to come from international clients with offices across the globe and are not confined only to cases involving local employers.

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 POHA protects persons against harassment and unlawful stalking, including sexual harassment. Under the POHA, a range of civil remedies and criminal sanctions is available to protect people from sexual and other forms of harassment.

Depending on where an offence lies within the POHA, a person may be liable to a fine not exceeding S$5,000 and/or an imprisonment term not exceeding 6 or 12 months for a first instance offence. Subsequent offences may attract a penalty not exceeding S$10,000 and/or an imprisonment term not exceeding 2 years.

The victim of harassment may also bring civil proceedings against the perpetrator under a statutory tort or seek a protection order from the court in appropriate cases.

The Penal Code provides criminal sanctions against persons accused of outraging the modesty of another person, whether physically or non-physically.

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. The #MeToo movement has shone a spotlight on sexual harassment in the workplace and definitely increased awareness of this issue in Singapore – tackling sexual harassment is a high priority for clients in Singapore. 

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.