CMS Expert Guide on sexual harassment in the workplace

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.

Sexual harassment in the workplace is prohibited under Section 2 (1 lit. 1 - 4) of the General Equal Treatment Act from 2006 (Allgemeines Gleichbehandlungsgesetz).The legal definition of sexual harassment in Section 3(4) of the General Equal Treatment Act is “unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, which takes place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment”.

Since 2016 sexual harassment in the form of physical contact can be a criminal offence under Section 184i of the Criminal Code and is punishable by imprisonment of up to two years and/or a fine.

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

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.

According to section 12 (1) of the General Equal Treatment Act employers must take preventive measures to protect employees from sexual harassment. However, it is not specified in the legislation which measures the employer ought to take. Measures could include training and company agreements. The law outlines in section 12 (3) of the General Equal Treatment Act a variety of appropriate measures which may be taken against an employee who harasses their colleague, including moving, relocating or dismissing the employee. When employees are sexually harassed by third parties in the performance of their duties, under section 12 (4) of the General Equal Treatment Act the employer shall take suitable, necessary and appropriate measures, chosen in a given case, to protect the employee in question.

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

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.

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.

According to Section 13 of the General Equal Treatment Act, employees have the right to lodge a complaint to the competent authority of the company if they feel they have been sexually harassed. According to Section 16 of the General Equal Treatment Act, the employee may not be disadvantaged in this regard. In addition, under section 14 of the General Equal Treatment Act, the employee affected by sexual harassment has the right to refuse to work without loss of pay if the employer does not take any measures, or takes obviously inappropriate measures, to end the sexual harassment at the workplace.

Under section 15 (1) of the General Equal Treatment Act an individual that has suffered harassment in the workplace has a right to make a claim for damages (material harm, i.e. loss of earnings) and compensation (non-material harm, injury to feelings) against the employer and against the individual employee who has harassed them. The employer is only liable for harassment of his employees or third parties if he is at fault. This is not usually the case when harassment first occurs. However, in case of reoccurrence, the employer is liable, if they failed to take appropriate measures to protect the harassed individual against sexual harassment. The fault of the employer is presumed in section 15 of the General Equal Treatment Act.

If the employer is at fault, a contractual claim for damages against the employer may also be considered.

If the harassment injures the person concerned in his or her health or general personal rights, the injured person can claim damages and failure from the harasser according to the Civil Code.

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

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.

Green to amber.

The institution Forsa conducted a survey in which 24% of the women interviewed said they had been sexually harassed in the workplace. 44% of these employees dealt with incidents by talking to the accused person, their supervisor or by informing the works council. However, the remaining 56% chose not to take any action.

Most of the DAX 30 companies do not state any concrete numbers regarding sexual harassment. Only two companies (Beiersdorf, Continental) reported a total number of 13 cases for 2018. Experts are certain that only a small number of victims report harassment, let alone file complaints to a labor court.

Companies increasingly want advice on preventive measures against sexual harassment in compliance structures. This includes the various steps a client can take in order to prevent sexual harassment and to change the "climate" in the company. This will usually be a tiered, "escalating" model in which several components such as a code of conduct, an ombudsman or a whistleblower hotline are integrated.

6. Any other relevant information on workplace harassment?

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.

The Federal Anti-Discrimination Agency in a 2019 study reported that “approximately one in eleven gainfully employed persons has been affected by sexual harassment at the workplace within the last three years.”

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?

In Switzerland, there has not been a particular focus on this issue within any specific sector.

The same study explained “there is a high risk of sexual harassment in all sectors. As far as this was possible given the low number of cases, the present study shed more light on certain sectors. According to the study, the sectors most affected are health and social services (29%), manufacturing (11%), trade (12%), transport (6%), water and energy supply as well as childcare and education (10%).”

Women are more often confronted with sexual harassment than men. The annual report of the Federal Anti-Discrimination Agency shows that in only 13 cases (out of 193) men were harassed.

In our experience, sexual harassment more frequently affects women who are in subordinate positions to the perpetrators. Direct verbal or physical assaults are usually isolated incidents and often occur at meetings outside working hours but in a company context, e.g. at company celebrations, under the influence of alcohol, or during professional team-building measures. Not to be neglected, however, is retaliation against employees for rejecting sexual advances or harassment, e.g. by obstructing their career advancement or discriminating in salary rounds.