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.  

The Luxembourg Labour Code dedicates an entire chapter to sexual harassment (article L.245-1 following the Labour Code) which has been introduced by the law on 26 May 2000 (law on protection against sexual harassment in employment relations and amending various other laws currently incorporated into the Labour Code).

The law defines sexual harassment as any conduct with a sexual connotation or any other conduct based on sex that the person who is guilty of it knows or should know affects the dignity of a person, when one of the following conditions is met:

  • the behaviour is unwanted, unintentional, abusive and hurtful to the person being abused;
  • the fact that a person refuses or accepts such conduct on the part of the employer, an employee, a customer or a supplier, is used explicitly or implicitly as the basis for a decision affecting that person's rights with regard to vocational training, employment, job retention, promotion, wages or any other decision relating to employment;
  • such behaviour creates an intimidating, hostile, degrading, humiliating or offensive environment towards the person being subjected to it.

The behaviour may be physical, verbal or non-verbal.

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 employer must take measures in order to prevent any harassment that could arise in the company. However, there is no set list of measures prescribed by law, and it is up to the employer to assess which measures are best suited to their company. However, the employer must keep in mind that their responsibility may be engaged if the measures they initiate are insufficient to ensure an environment that respects the dignity of all employees.

In practice, the following options can be adopted by the employer to meet their obligation to find appropriate measures: ensuring good internal organisation within the company (listening to employees if necessary), training of high-executives, providing information and raising awareness to the employees (the information can be provided in the code of conduct or in the company charter), dissuasion and internal assessments of the prevention measures. These options are examples of the types of measures that an employer can take in order to comply with his legal obligation to take measures to prevent any harassment.

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.

While the #MeToo movement has gained significant ground in countries all around the world, leading to more victims of sexual harassment and assault coming forward, this increase does not appear to be replicated in Luxembourg. Even if some employees who are victims of sexual harassment raise complaints, the debate on aggression and sexual harassment in Luxembourg occupies less public space. However, the lack of a significant #MeToo movement does not make Luxembourg a country where sexual harassment does not exist. Therefore, we have not seen a noticeable increase in our clients receiving harassment complaints. Most of the clients’ requests concern “moral harassment”. Although there is no standard definition, moral harassment is normally understood to involve non-physical acts of harassment in the workplace, occurring over a significant time period that have a humiliating effect on the victim.

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

A claim for sexual harassment can be brought against the employer and the employee who harasses the individual by the employee in front of the employment court.  Compensation for harassment is potentially uncapped and the legislation in force is in favour of the employee since there is a reversal of the burden of proof. This is a “shared evidence” system. The employee must provide some initial evidence (which must convince the court that their explanation is plausible) then the burden passes to the employer who must justify itself.

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.

We would say amber, as sexual harassment is an important topic that all employers should be aware of. However, there are very few reports and court cases involving this kind of claim are dealt with sensitively.

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).

Even if there is no specific change in the labour law regarding sexual harassment, we have noticed that there is growing pressure from social media and the media in some cases. In this regard, some trade unions are also applying pressure and are campaigning that the issue must not be treated as taboo and that politicians must broach the issue too.