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.  

Turkish Labour Law ("the Law") obliges employers to protect their employees as part of their duty of care, therefore this also includes protection against harassment. 

Further, the Law deems sexual harassment in the workplace as a reason for immediate termination of employment. Therefore, if an employee who has experienced  harassment at  work and has previously reported the harassment to the employer, and the employer has failed to take the necessary precautions against the harassment, the harassed employee would be able to resign with immediate effect and seek certain statutory payments.  

The Law and the related protection has been in place since 2003.

In addition, the Turkish Code of Obligations also requires employers to establish order in the workplace ensuring that the personal rights of employees are protected. However, the actual implications of this obligation, implemented in 2011, have not been well defined by court decisions  and therefore remain relatively theoretical.  

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. 

As mentioned above, employers are required to take pro-active action to prevent sexual harassment in the workplace as part of their duty of care to their employees. The obligations under the Code of Obligations explained above may also be considered as prompting employers to take action. However, in practice, Turkish courts would review whether an employer has taken the necessary precautions against harassment once it has been reported by an employee (as opposed to whether the employer took precautions even before the harassment took place).

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.

No.

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.

In line with the legal remedies mentioned above, the harassed employee would be entitled to lawfully terminate their  employment contract and claim all statutory benefits (among others severance pay, unused holiday pay, pay for any overtime work performed, other outstanding amounts such as bonuses) if the employer has failed to take precautions following the occurrence of a case of harassment.  

Where the employer has failed to prevent harassment and has acted negligently in this respect, the employee may be able to claim non-material damages as well based on the failure of the employer to fulfil its duty of care

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.

For most of our clients, this would be considered a high priority matter, so a red light, assuming that it is intended to show the highest priority.

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.

The Law is the primary source regarding the workplace-related regulations. Further, as mentioned above, the Turkish Code of Obligations also imposes certain obligations on the employer although the actual implications of these remain unclear. 

As for the criminal law aspect of this behaviour, this is regulated under the Turkish Criminal Code. It should also be noted that the criminal law aspect of harassment would not be binding on labour courts which means that even if a suspect is acquitted of criminal proceedings related to a case of sexual harassment, he/she may continue to face labour law sanctions (i.e. termination of employment).

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.