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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.