CMS Expert Guide on sexual harassment in the workplace

The legal definition of harassment in the Bulgarian Anti-Discrimination Law is “unwanted physical, verbal or other conduct on the grounds of gender, race, nationality, ethnicity, genetics, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which the Republic of Bulgaria is a party, which has the purpose or effect of violating the dignity of a person and of creating a hostile, degrading, humiliating, offensive or intimidating environment”.

In addition to the general prohibition on harassment, there is a specific provision in the Anti-Discrimination Law regarding sexual harassment. According to the additional provisions of the Anti-Discrimination Law, sexual harassment is “any unwanted physical, verbal or other conduct of a sexual nature which violates the dignity or honour and creates a hostile, degrading, offensive, humiliating or intimidating environment and, in particular, where refusal to accept such conduct or the compulsion thereto may influence the taking of decisions affecting the person”.

The legal prohibition of harassment has been in force since the beginning of 2004.

No significant changes to the legal regulation of harassment are expected in the near future.

The term sexual harassment is not defined by Russian law. Depending on the facts of the case sexual harassment may either be considered as discrimination or as another type of offence (e.g. coercion into sexual contact, etc.).

The Russian Labour Code (dated 30 December 2001) prohibits any type of employee discrimination including any sex-related discrimination (there are, however, no statutory norms explicitly regulating sexual harassment at work). A similar legal provision is also contained in the Constitution of the Russian Federation dated 12 December 1993, which protects the equality of all persons irrespective of their sex.

Employers are also allowed to include provisions addressing sexual harassment at work in collective bargaining agreements; however, this is not a widespread practice in Russia.

The law prohibits harassment in the workplace including sexual harassment (Official gazette of Montenegro no. br. 030/12 and 054/16).  This law has been in force since 2012.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

Generally, employers are obliged to provide equal treatment to male and female employees, and not to allow discrimination or harassment. In addition, employers are obliged to protect the dignity of their employees in the course of performing their work duties. However, the law does not impose any specific requirement for employers to prevent sexual harassment, such as an anti-sexual harassment policy, training and/or appointment of a special officer.

There are no explicit statutory requirements for employers to take any pro-active measures in this regard. However, the employer must make sure that employees’ rights are not violated and, in this respect, should any cases of sexual discrimination/ harassment take place at work, the employer must take measures to remedy the respective violation.

Workplace harassment is known as “mobbing” in Montenegro. An employer and an employee are obliged to comply with the rules on prevention and protection against mobbing. An employer is obliged to provide an employee with work in the workplace and working environment under conditions that ensure that employee's dignity, integrity and health are being respected, and to take the necessary measures to protect an employee from mobbing.

Additionally, before entering into employment relationship with an employee, an employer is obliged to inform him/her in writing about its rights, obligations and responsibilities in connection with mobbing.

In order to prevent mobbing, an employer must implement certain measures (i.e. by providing information and organising training) with regards to causes, manifestations and consequences of mobbing.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

Despite the noticeable impact of the #MeToo movement in other countries and the intensive public discussions regarding the #MeToo movement and sexual harassment in Bulgaria, there has not been a significant increase in the number of sexual harassment claims in the workplace in Bulgaria. Our experience shows that in the last few years, sexual harassment claims have started to appear from time to time, but such cases are still rare. Most of the complaints are settled internally by the employer. Very few claims are raised with the competent administrative body, the Bulgarian Anti-discrimination Commission, and/or the court. Our clients, especially multinational companies, are focused on improving their internal procedures and policies that are related to dealing with harassment claims and encouraging employees to report their concerns.

No. Based on the available information, this movement had no impact on the employment relations, nor has it led to any claims filed by employees against employers in Russia.

No.

An employee can make a complaint to the employer, which is obliged to immediately investigate the complaint, take measures to stop the harassment and impose disciplinary sanctions, if the harassment has been caused by another employee. Although this is not explicitly required in law, the practice is that employers in such cases form a commission, preferably with the participation of a person who is not a part of the organisation and is therefore unbiased (e.g. an attorney) to investigate such complaints.  If there is a ground for imposing disciplinary sanctions, including the dismissal of the employee who has caused the harassment, employers are obliged to observe a mandatory procedure for imposing disciplinary sanctions.

Notwithstanding the above, employees can bring a claim before the Anti-Discrimination Commission. The sanctions it can impose are financial sanctions of up to EUR 1,000 per breach. It can also issue mandatory recommendations for remedying the breach which has triggered the complaint.

An employee can also file a court claim under the general litigation regime.

Finally, an employee can submit a complaint to the Labour Inspectorate for failure by the employer to perform its statutory duties (e.g. to protect the dignity of each employee, in particular).

There is no legal requirement in relation to the order or subordination of the available legal remedies. The only rule envisaged in the law is that the Anti-Discrimination Commission shall not open a case if there is a pending court case for the same matter elsewhere.

The employee can bring a claim to court and/or state labour authority against the employer. If the employer is found violating the employee’s labour rights, it can be subject to an administrative fine of up to RUB 50,000 (approx. EUR 560). The corresponding manager can also be fined up to RUB 5,000 (approx. EUR 56). The remedy can also depend on the type of action taken by the employer against the employee, e.g. if the employee was wrongfully dismissed, the court may also reinstate the employee in his/her position.

The employee can also claim in court “moral damages” suffered due to their employer’s unlawful actions. In order to claim moral damages, an employee will need to provide proof (e.g. by submitting a medical certificate issued following a medical examination of the employee.) The causal relationship between the harm caused to the employee’s health and the employer's actions, as well as the amount of the claimed moral damages should also be established by court. In practice, courts usually award very insignificant amounts of moral damages (up to EUR 500).

The victim can also make a claim to the police (depending on the nature and consequences of harassment). Sexual discrimination committed by a person by the use of his/her management power is considered to be a crime in Russia (the convicted person can be sentenced to up to 5 years to prison). If the element of management power has not been involved in the case of discrimination (e.g. when the discriminator occupies the same or an inferior position against the discriminated person and, thus, cannot exploit his/her job position for this purpose), then the violating person can be subject to an administrative fine of up to RUB 3,000 (approx. EUR 34). If a relevant offence has been committed by the company (e.g. if the company refused hiring the person based on his/her sex), it can be subject to an administrative fine of up to RUB 100,000 (approx. EUR 1,120).

Coercion into sexual contact, including the use of a person’s dependent position (which could be relevant for the corresponding case between the employee and his/her manager), is also considered to be a crime in Russia and may lead to the corresponding punishment (up to one year imprisonment). It should be noted that criminal liability in Russia can be imposed only on individuals (companies cannot be held criminally liable in Russia).

In addition, public dishonouring of a person on the basis of his/her sex can be recognised as an administrative offence and lead to imposition of an administrative fine of up to RUB 500,000 (approx. EUR 5,600) on companies and RUB 20,000 (approx. EUR 225) on corresponding company’s officers (who alternatively can also be arrested for 15 days, or charged with community service of up to 100 hours). If the same offence has been repeated by a natural person within one year after this person was imposed with the said administrative liability, he/she could be held criminally liable and, as a result, may be imprisoned for up to 5 years. Additionally, if such an offence was committed by a person with the use of his/her job position, then he/she could be subject to criminal liability (up to 6 years imprisonment) even for a single offence.

In the event of being found to have committed the offence of mobbing, an employer may be fined between €500 to €10,000 (ii) the person responsible may be fined between €500 and €3,000 and (iii) an entrepreneur may be fined between €100 and €1,500.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

Red to amber. The majority of our clients are multinational companies or major local players which are particularly sensitive to reputational issues, including any allegations of sexual harassment in the workplace. A significant number of our clients take or have already taken preventive measures to introduce whistleblowing policies, codes of ethics and various other safeguards to prevent sexual harassment in the workplace. A lot of them operate these policies at a group level which apply to their Bulgarian subsidiaries as well.

Currently, the priority addressed to this matter in Russia sits in the green category. Relevant claims are very rarely filed by the employees, and employers, accordingly, do not consider this to be a major issue in practice.

Amber. 

6. Any other relevant information on workplace harassment?

Although the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is not devoted particularly to sexual harassment against women in the workplace, it is worth mentioning that it has not been ratified by the Bulgarian Parliament. Amidst a huge public debate and despite the European Parliament calling for ratification of the Istanbul Convention, the Bulgarian Parliament is currently refusing to do so.

It should be noted that in relevant cases it is usually quite difficult for an employee to prove the acts of discrimination due to a lack of available evidence (unless there is a witness who can confirm the allegations).

In addition, we estimate that the quantity of corresponding claims from employees could possibly slightly increase in the future given that employees become more educated about their rights.

The law defines harassment (i.e. mobbing) as any active or passive conduct at work or in relation to work for an employee or group of employees, which is repeated, which is intended or represents a violation of the dignity, reputation, personal and professional integrity of the employee and which causes fear or creates a hostile, humiliating or offensive environment, deteriorates the working conditions or leads to the isolation of employees or results in them terminating their contract of employment or other contract on their own initiative (including encouraging or instigating others to do so). Mobbing behaviour includes sexual harassment.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

There is no official data about sectors which are more heavily affected by sexual harassment than others. It can be expected, however, that the trends in Bulgaria would have a more distinct regional angle rather than a sectoral one. It is more likely that poor regions with high unemployment rate will score low in the battle against sexual harassment in the workplace as opposed to regions with better performing economies and lower unemployment rate (these are mainly the largest district cities like Sofia, Plovdiv, Varna and Bourgas). As an overall comment, sexual harassment in the workplace in Bulgaria is an issue with an unmeasured magnitude and with a slowly increasing number of complaints reaching the competent authorities and gaining publicity.

No. To the best of our knowledge there are no specific sectors particularly affected by, or concerned with, harassment.

No, we are not aware of any particular sector that has been affected by harassment. There have not been many disputes concerning harassment since the Law on prohibition of harassment in the workplace came into force (June 2012), not because there are no harassment at work, rather for the mentality of people as well as lack of awareness of this issue in Montenegro.