What Constitutes Sexual Harassment in the Workplace?
Knowing what is viewed as inappropriate behaviour is the first step towards establishing whether a person has a case for sexual harassment. What are the boundaries? What actions are considered sexual harassment? How individuals respond to certain actions will depend on the person and the situation itself. The law does provide definitions as to what actions are considered harassment under § 3 General Equal Treatment Act (AGG).
This Act defines “sexual harassment” as “(the) an unwanted conduct of a sexual nature” and it lists the following actions as equating to it “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”. The definition goes further to state that such actions can create “an intimidating, hostile, degrading, humiliating or offensive environment” in the workplace.
Breaking this definition down we can see that sexual harassment can take a variety of forms. It is not merely about physical actions taken by those working in the company. The listed elements are:
- Physical actions: unwanted sexual acts and physical contact,
- Verbal actions: unwanted sexual requests, comments of a sexual nature,
- Non-verbal actions: showing or public exhibition of pornographic images.
Furthermore, actions taken such as whistling, lewd remarks and jokes about a person’s personal life, indecent exposure and unwanted conduct of a sexual nature online (through social media or emails) can also be deemed to be of a harassing nature. If the atmosphere within the company is of an intimidating or hostile environment it will be considered. However, it is not vital to proving the harassment. Whether the harassment comes from one co-worker, many co-workers or the boss of the firm, the victim should consider legal action.
What Actions can I take Against Sexual Harassment?
Under §12 AGG / General Act on Equal Treatment the employer has a duty to create a working environment that does not tolerate discrimination or harassment. Such actions include highlighting that their company does not countenance such behaviour, providing vocational training to show what is deemed to be inappropriate and taking disciplinary action should the issue be brought to their attention. Such disciplinary actions can range from cautioning the perpetrator to relocating them and even dismissing them. Depending on the severity of the offence, the perpetrator could even face a prison sentence! Under § 184i StgB (German Criminal Code) unwanted touching of a person can equate to two years in prison or a fine depending on the circumstances.
However, should your employer not take the required disciplinary actions it is then worth considering availing of legal assistance. Having a lawyer with experience in the field of sexual harassment cases can help you in pursuing your claim. In the workplace itself, §13 AGG provides the employee with the right of appeal in such cases. If following this no action is taken or “obviously unsuitable measures” are implemented, the employee has the right to refuse performance in work under §14 AGG.
What Obligations does an Employer have to Prevent Sexual Harassment?
As stated above, the employer has a lot of responsibility when it comes to preventing sexual harassment in the workplace. Should they not take any action to prevent it there can be serious consequences. It is even more likely the case that the employer will face legal difficulties if it is found that they encouraged such actions to occur! Therefore, from the perspective of the employer, preventative measures are preferable.
From this perspective it is beneficial to make sure that there is a procedure in place where all employees know what actions are inappropriate, what the procedure is to make complaints and what