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 Code of Labour Laws of Ukraine dated 10 December 1971 contains general provisions prohibiting discrimination in the workplace, including discrimination based on gender.

The term sexual harassment is defined by Ukrainian legislation as any act of a sexual nature, expressed verbally (i.e., threats, intimidation, obscene remarks) or physically (i.e., touching, patting), humiliating or offending individuals who are in a relationship of labour, administrative, financial or other subordination. This term was introduced into Ukrainian legislation in 2005 by the Law of Ukraine “On ensuring equal rights and opportunities for women and men” (No. 2866-IV dated 08 September 2005). In 2017, the law was amended by the term “gender-based violence” and other terms to ensure equal protection of rights for women and men.

Employers may also include provisions addressing sexual harassment at work into collective bargaining agreements, including disciplinary consequences for acts of harassment (up to the dismissal of offenders). However, this is not a widespread practice in Ukraine.

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).

According to the Law of Ukraine “On ensuring equal rights and opportunities for women and men”, employers are obliged to take measures in order to prevent and protect against sexual harassment and other forms of gender-based violence.

However, there are no direct requirements or procedures for prevention and protection, and there are no direct consequences for employers for failing to ensure all of that.

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.

No. The #MeToo movement has not had a noticeable impact on the number of harassment complaints made against employers in Ukraine.

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

In case of gender-based violence or sexual harassment, the injured person has the right to file a complaint with the state/ local authorities, the Commissioner of the Verkhovna Rada of Ukraine for Human Rights (Ombudsman at the Ukrainian Parliament), the court and / or with the police.

The employee can also claim in court "moral damages" suffered due to their employer’s unlawful actions. In order to claim such moral damages, however, an employee will need to prove moral suffering (e.g., by submitting a medical certificate issued based on a medical examination of the employee and reflecting the employee’s stress or other emotional disorders) and to substantiate the causal link between the damage caused to the employee and the employer's actions, which is not straightforward. The amount of the moral damages should be substantiated by the employee, but the final determination is made by court. In practice, courts usually award rather insignificant amounts of moral damages.

Depending on the nature and consequences of the harassment, the victim can also report a crime to the police. In particular, Article 154 of the Criminal Code of Ukraine provides criminal liability where individuals are forced to enter into sexual intercourse, including forcing individuals who are in a relationship of administrative or financial subordination. The moral compulsion by the offender can be treated as a criminal offence under the mentioned Article 154 of the Criminal Code of Ukraine.

This crime is punished with the fine of up to 850 UAH (approx. EUR 30) or with the arrest for up to 6 months. If this crime is supported by the aggravating circumstances, e.g.,  threats of destruction, damage or seizure of the victim’s property, disclosure of information that disgraces the victim or the victim’s relatives, it is punished with the arrest up to 6 months or the imprisonment for up to 3 years.

Furthermore, Article 153 of the Criminal Code of Ukraine stipulates that committing any sexual violence (not connected with the rape) without the voluntary consent of the victim is punished by imprisonment for up to 5 years.

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.

Tackling sexual harassment is not a top priority for employers in Ukraine.

Generally, employers are not taking active steps for prevention of sexual harassment. There is no official information about number of such cases. The employees are often reluctant to submit any claims, and some cases remain either unreported or in a latent state.

However due to employees’ increased awareness about their rights, tackling sexual harassment is becoming a higher priority.

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).

It is difficult for an employee to prove the facts in a harassment case, unless there was a witness to the actions or some direct evidence or the offender admits their misconduct.

Moreover, in Ukraine there were cases when the alleged offenders filed defamation claims and claims for compensation of moral damages against the victims of harassment, and such offenders’ claims were satisfied, including, due to insufficient evidence of harassment.