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.  

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. 

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. 

Yes. Employers are not only obliged to intervene where sexual harassment occurs but they also have to prevent sexual harassment in the workplace in order to fulfil their duty of care and comply with the various legislative requirements to take all adequate and reasonable measures necessary to prevent sexual harassment.

The State Secretariat for Economic Affairs recommends implementing, in particular, the following measures:

  1. Employers should have in place a document outlining the principles (i.e. a policy document), containing (at least) a declaration of principles, in which the employers state that they are firmly opposed to sexual harassment and will not tolerate it, a definition of sexual harassment (including examples), the offer of support for victims (including the name of a contact person), and the sanctions that perpetrators of sexual harassment will face. This document must be communicated to all employees orally and/or in writing;
  2. Employers should appoint a trustworthy, respected, impartial and credible contact person within or outside the company who can support victims in need of help or advice. Ideally, there should be two contact persons, one of each gender. It must also be taken into account that such a contact person should be properly trained; and
  3. Employers must take any other reasonable preventive measures. For instance, they should ensure that pornographic material is not shown or displayed in the workplace and that employees who make comments and jokes about sexual characteristics, sexual behaviour or sexual orientation will be spoken to and told to stop doing so.

The new PRC Civil Code requires that the employers shall take reasonable measures regarding sexual harassment including prevention, complaint, investigation and treatment measures to prevent and stop sexual harassment in the workplace by using power or relationship hierarchy. At the local level, Jiangsu Province has some specific requirements.

According to the Special Provisions on Labour Protection for Female Employees of the Jiangsu Province dated 8 May 2018, the employer must adopt the following measures to prevent sexual harassment towards female employees:

  1. formulate rules prohibiting sexual harassment at the workplace;
  2. conduct education and training on how to prevent and stop sexual harassment;
  3. provide a work environment free from sexual harassment;
  4. ensure there are uninhibited channels for making complaints, promptly deal with complaints and protect the privacy of the involved party; and
  5. adopt other measures to prevent and curb sexual harassment against female employees.

However, it does not impose specific liabilities on employers who violate the requirements.

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.

We have not been aware of a considerable increase in claims against employers as a result of #MeToo. The number of enquiries to specialist/advisory bodies increased in 2017, shortly after the launch of the #MeToo movement. However, the number of enquiries has now returned to a normal level. Swiss prosecuting authorities have seen very little change in the number of inquiries and criminal complaints. On the other hand, it seems that awareness of sexual harassment in the workplace is rising on the part of employers. We have seen a sharp increase in the demand for further training on the subject of sexual harassment and its prevention.

According to the currently applicable law, a female employee can raise claims against the employer at the competent Labour Arbitration Committee if the employer fails to fulfil its obligations on preventing the harassment (with the effectiveness of the new PRC Civil Code, the male employee may be able to raise claims against the employer as well). However, in current practice,  employees usually do not take such legal action against their employers. Instead, in cases of sexual harassment in the workplace, employees usually first seek support from their employer. We have noticed that some of our clients have received internal harassment complaints from time to time but in practice, due to the lack of a clear definition of sexual harassment in law, it is viewed as difficult for clients to identify what can constitute harassment. Most clients do not have internal processes for dealing with complaints and investigation procedures. 

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.

Swiss law provides for a variety of legal remedies.

Employees who have been sexually harassed may suspend their work, and employers must continue to pay their salary during the suspension period.

Victims of sexual harassment may also lawfully terminate their contract of employment with immediate effect. In such cases, employees are entitled to damages equivalent to the amount they would have earned had the employment relationship ended after the ordinary notice period (usually 3 months).

Besides suspension and immediate termination of employment, victims of sexual harassment may bring an action against employers before the competent conciliation board, a court or the administrative body. To this effect, they may apply for an order prohibiting or stopping threatened sexual harassment, requiring sexual harassment to cease and confirming that sexual harassment is taking place if it is continuing to have a disruptive effect. On top of that, they may apply for compensation if the employer did not take sufficient measures to prevent sexual harassment. Such compensation may amount to up to six times the average Swiss monthly salary. In addition, victims may claim damages and satisfaction.

Employees may challenge a dismissal as a result of making a complaint of sexual harassment to their manager, or because of their initiation of legal proceedings. Remedies includes interim relief or compensation of up to six months’ salary within 180 days after termination of employment. Civil claims can also be brought against the harasser, and they may ask the court for injunctive relief as well as claim damages and satisfaction. The employee may also bring a criminal charge against the harasser.

According to the new PRC Civil Code, anyone who suffers from sexual harassment in the workplace may bring a civil claim against the employee who has harassed him/her at the People’s Court to protect his/her legal rights. 

Furthermore, currently female employees can bring a complaint against the employer at the competent Labour Arbitration Commission or they can report to the police station, which can, subject to the severity of the harassment, impose an administrative punishment on the employee who has harassed them, such as a detention of 5 to 10 days and a penalty of RMB 500, or file a criminal case for further investigation. We expect that after the effectiveness of the new PRC Civil Code, male employees will be able to take legal actions to protect their legal rights.  

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.

Although awareness of the issue of sexual harassment in the workplace has grown and the demand for specialised training for companies is increasing, tackling sexual harassment does not seem to be a top priority for employers. This may be against the background of Swiss law already having prescribed the implementation of measures against sexual harassment at an early stage, i.e., long before the #MeToo movement, and this has already become established corporate practice.

In recent years, the number of sexual harassment claims has been increasing. However, major cases have tended to involve the dismissal of the employee who has carried out the harassment. We would say this currently sits in amber category.

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.

Employees bear the burden of proof with regard to sexual harassment in the workplace. In this regard, a recent parliamentary initiative aimed to reduce the burden of proof in the context of sexual harassment in the workplace. This initiative was rejected. However, the Swiss Parliament is currently discussing whether a new study on sexual harassment in the workplace should be carried out (since the last study dates back to 2007/2008). This must be seen against the background of the Istanbul Convention Against Violence Against Women and Domestic Violence of the Council of Europe entering into force in Switzerland on 1 April 2018 and requiring members of the convention to collect statistical data on sexual harassment cases. A member of the Swiss Parliament recently requested the launch of a national prevention campaign against sexual harassment as well as the implementation of an action plan for the prevention of sexual harassment, which includes educational measures and training in companies. To date, this has not yet been discussed by the Swiss Parliament. The International Labour Organisation (ILO) is currently considering a new convention on the ending of violence and harassment in the working environment. The outcome is still unclear but could also affect Switzerland as a member of ILO.

In practice, more and more companies are becoming aware of the importance of eliminating sexual harassment in the workplace. Even without statutory requirements, companies will often include a policy within the employee handbook on preventing and stopping sexual harassment, and also state that sexual harassment amounts to a serious breach of company rules which may result in immediate dismissal. Some companies also provide training to employees about this issue.