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.  

Since the Spanish Constitution of 1978, the fundamental right to life and to physical and moral integrity has been granted to every Spanish citizen.

In addition, since 1995 the Spanish Criminal Code also includes sexual harassment as a criminal offence that could be punished with a sentence of imprisonment.

Without prejudice to the provisions of the Criminal Code, the following legal definition of sexual harassment was introduced under the Constitutional Act 3/2007 of 22 March, for Effective Equality between Men and Women (the “Equality Law”): “any form of verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, degrading or offensive environment”.

In addition to the general concept of sexual harassment, the Equality Law includes the concept of harassment on the grounds of sex which is “any behaviour prompted by a person’s sex with the purpose or effect of violating his or her dignity, creating an intimidating, degrading or offensive environment.”

Both sexual harassment and harassment on the grounds of sex will constitute discrimination in all circumstances.

The Equality Law also establishes that the conditioning of a right or expectation of a right to the acceptance of a situation constituting sexual harassment or harassment on the grounds of sex will likewise be regarded as discrimination on the grounds of sex.

According to the provisions of Equality Law, all legal business acts and clauses causing gender discrimination will be considered null and void.

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. 

Under the Labour Infringements and Penalties Law the failure to prevent behaviour that could be considered as sexual harassment is considered a very serious infringement with fines ranging from EUR 6,251 to EUR 187,515.

Equality Plans

Employers are obliged to guarantee equal treatment and opportunities, and to this end must adopt measures geared towards preventing any form of occupational discrimination between women and men. This would cover any instances of sexual harassment.

Such measures must be negotiated, as appropriate, with the employees’ legal representatives. In companies with over 50 employees, these equality measures must lead to the formulation and implementation of an equality plan.

Prevention codes

Additionally, employers must foster working conditions that prevent sexual harassment and harassment on the grounds of sex and establish specific procedures to prevent such conduct and to handle claims raised by affected employees.

The procedures (which should be negotiated with the employees’ representatives) include the drafting and circulation of codes of good practice, information campaigns and specific training. Collective bargaining agreements frequently include specific investigation processes that must be followed when investigating harassment in the workplace.

Failure to comply with the obligation to prevent sexual harassment could imply that the employer is liable for any harassment committed by its employees.

The obligations referred to above have to be connected with the employees’ basic right set out in Article 4.2 of the Spanish Workers Statute (“SWS”) to be treated with dignity, consideration and respect at all times, including protection against sexual harassment and harassment based on sex.

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.

A gender equality Ministry was created in Spain in 2008. Since then gender equality has been a relevant issue for employers.

After the #MeToo movement we have noticed an increase in requests to take gender equality measures and to draft harassment prevention policies to detail the kind of behaviours that can constitute harassment and to improve their internal processes for dealing with complaints.

Likewise, employers are taking the initiative to investigate harassment when reported by employees, taking a proactive stance.

However, we have not seen a noticeable increase in our clients receiving harassment complaints.

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.

Employers will be held responsible to pay real and effective compensation proportional to the damage.

Any employee can raise a harassment claim before the employment courts against their employer and against the individual employee who has harassed them. Compensation for harassment is potentially uncapped. 

Additionally, as stated above, failure to prevent behaviour that could be considered as sexual harassment is considered a very serious infringement with fines ranging from EUR 6,251 to EUR 187,515.

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.

Red.

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.

Many new amendments regarding gender equality have recently entered into force. The public perception of gender equality, including any type of harassment and the reputational damage that these issues could have for companies, is being discussed.

An especially relevant case was the suicide of a woman after a sexually explicit video of her was circulated among her work colleagues in March 2019. Company managers were informed of the situation the week before, but they decided it was a personal matter and not a workplace issue and decided not to take action. Trade Unions have announced that they will file a claim before the Labour Inspectorate to consider the suicide as an occupational accident and, therefore, arguing that legal and criminal responsibility lies with the employer.