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.
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.