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.