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.
From a Swiss perspective, the term sexual harassment in the workplace covers any behaviour with a sexual aspect or based on gender that is unwanted by and humiliating to the recipient.
Employers are under an obligation to ensure that employees are not sexually harassed, and that any victim of sexual harassment suffers no further adverse consequences: (art. 328 para. 1 of the Code of Obligations).
Swiss law also provides for an express prohibition of discrimination through sexual harassment in the workplace, which includes in particular threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature (art. 3 of the Gender Equality Act 1995).
In addition, administrative law imposes the obligation on employers to take the measures necessary to protect the employee's personal integrity, which includes measures against sexual harassment under the Equality Acts.
Sexual harassment may result in a prosecution. Depending on the severity, a fine, a monetary penalty or a custodial sentence may be imposed.
It is also worth mentioning that various collective bargaining agreements set out provisions prohibiting sexual harassment.
In China, there are very few laws and regulations concerning sexual harassment. Currently only women are protected from sexual harassment. The PRC Law on Protection of Rights and Interests of Women (which came into force on 1 October 1992, amended on 26 October 2018) is the fundamental law to protect a woman’s legal rights. According to the law, sexual harassment against women is prohibited. A woman has the right to complain to the employer that she works for and to the competent authority.
In addition, the Special Provisions on Labour Protection for Female Employees issued by the State Council on 28 April 2012 is specifically concerned with sexual harassment in the workplace. It states that employers should prevent and stop sexual harassment towards female employees in the workplace.
However, the new PRC Civil Code, which will become effective as from 1 January 2021, broadens the protection objection of sexual harassment, i.e. not only women but also men are protected from sexual harassment. The new PRC Civil Code also provides that employers should take both pre- and post-measures to prevent and stop sexual harassment in the workplace.