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.

Since 1991 sexual harassment has been legally regulated by Legislative Decree 728 as an act of hostility by the employer towards the worker.  From February 2003, (with the publication of The Law on Prevention and Punishment of Sexual Harassment No. 27942 and its Regulations), provisions have been issued with the specific purpose of preventing and punishing sexual harassment produced in any relationship of authority or dependency.

The Government has taken the initiative in this matter, taking responsibility for issuing regulations to prevent sexual harassment at work.  In addition, it is not unusual for this issue to be dealt with in collective bargaining arrangements between trade unions and employers.

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.

Law No. 27942 requires employers to maintain conditions of respect among their workers, to train them on the rules and policies against sexual harassment at work and to adopt measures to repair the damage suffered by the harassed and to avoid reprisals by the harasser.

Law No. 27942 and its Regulations, require all employers to establish an internal preventative procedure to be communicated to their workers, to internally investigate complaints that may be made by people who consider themselves victims of sexual harassment at work. If at the end of the investigation, the employer concludes that the worker has harassed another, the employer shall sanction that person according to the seriousness of the facts, with admonition, suspension or dismissal from employment.

If the employer does not initiate the investigation or does not adopt appropriate protection, prevention or punishment measures, or if the harasser is the employer or its representatives, the victim can sue the employer to stop the hostility, or consider himself/herself dismissed claiming the payment of compensation for dismissal, and also demand the damages and losses suffered as a result of the act of sexual harassment.

The victim may request precautionary measures of protection before the investigation is concluded, such as the rotation of the alleged harasser, the temporary suspension of work of the alleged harasser, rotation of the victim, at his/her request, ensuring that the harasser does not approach the victim or his family environment, psychological assistance or other protection measures that guarantee their physical, mental and / or moral integrity.

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.

The #MeToo movement does not have much presence or repercussions in Peru, which has probably led to no major concern at national level regarding the issue of sexual harassment at work. This is evidenced by the scarcity of complaints related to sexual harassment at work. Indeed, since 2003, when Law 27942 was enacted, to date, we have known very few cases of 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.

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.

Employers are legally obliged to inform the Ministry of Labour about cases of sexual harassment that occur at the workplace and the result of their investigations.

Besides employers’ legal obligation to inform the Ministry of Labour about cases of sexual harassment and the result of their investigations, the main remedy provided by the law to the victim is to file a complaint with his/her employer so that he may initiate an investigation and punish the aggressor, taking also certain measures to protect the victim.

In addition to this complaint, the law recognizes the following rights of the person who considers herself/himself the object of acts of sexual harassment:

1. She/he is entitled to initiate the following actions against her/his employer:

  • If the harasser is the employer, the victim may sue her/his employer before the courts in order to cease the hostile behaviour, or consider herself/himself dismissed from their employment and sue the employer for compensation for unfair dismissal.
  • The victim may also sue the employer in court by demanding compensation for the damages caused by the act of sexual harassment.
  • The victim may also ask the Labor Inspection Authority to verify the facts, fine the employer and order them to take measures to protect the victim, prevent new similar cases and apply the corresponding sanctions.
  • In cases of complaints filed with the employer for sexual harassment, if the employer or the competent official fails to initiate the investigation or does not adopt the corresponding protection, prevention and sanction measures, the victim may also sue the employer to stop the hostile behaviour or consider himself/herself dismissed from employment and demand the payment of severance pay.

2. It is also possible that the victim criminally denounces the stalker before the Police Authority or the Prosecutor's Office. For this purpose, it should be noted that the law defines as a crime the act of monitoring, persecuting, harassing, besieging or seeking contact or closeness with a person, without her/his consent in order to carry out acts of a sexual nature. The harasser can be punished with a sentence of up to eight years in jail.

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.

There are not many complaints about sexual harassment at work. We believe that this is due to the fact that, for various reasons, the victims usually do not come forward in making these complaints. However, where complaints of sexual harassment are received the employers do investigate the matter and where appropriate sanction the workers who were responsible.

In that sense, when a case is reported it has a high priority (red).

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 our opinion, concern at national level regarding the issue of sexual harassment at work should increase. Unfortunately, the #MeToo movement does not have much presence or impact in Peru.

The concern of the organisations that defend the rights of the female population in Peru is more linked to the eradication of physical violence against women, coinciding with the concerns of the movement "Ni Una Menos" (Not Even One Woman Less) emerged in Argentina in 2015, specifically against women homicide and violence at home.