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 sanctions are in place for perpetrators. By taking such actions, not only should the employer reduce the number of harassment actions but also create an environment where employees feel safe and can perform at their best. An employee who feels safe and respected in their work will perform better than one that does not.
Cooperation with work councils is recommended in this field as is discovering what is best practice. Having the employees onboard with the steps that should be taken is one way to make sure everybody is informed about the procedures and sanctions. Furthermore, employers could discuss such issues with other companies, legal professionals and professional bodies in this area for more information as to the best course of action.
What is the Impact of Sexual Harassment in the Workplace?
Should a company allow for a working environment in which sexual harassment is permitted, it can lead to serious consequences. In terms of the victims of said harassment, they can experience the following problems:
- Lack of confidence in their work,
- Lack of motivation,
- Anxiety and panic attacks,
- Insomnia and difficulty concentrating at work,
- Physical manifestations of anxiety.
All these issues can contribute to an employee not being able to perform their best at work. In turn, this can contribute to a scenario where co-employees may also be unmotivated and anxious in their work due to the negative environment around the workplace. As stated above once the employer is aware of the sexual harassment taking place in the company, they should take action, or they may find themselves facing legal consequences. For those not directly affected by the harassment itself, they can also take a standby supporting the victim and by bringing the information to the knowledge of their superiors.
For an employer, it is of course better for business when their workplace is a motivated camp where all employees can perform at their best for the benefit of the company. It is also better for business that a company does not develop a reputation for allowing sexual harassment to continue unabetted.
What Legal Consequences Can Occur from a Claim for Sexual Harassment?
Some of the consequences are listed above in the form of cautions given to the perpetrator as well as dismissal of the employee. The sanctions that arise from the case will be dependent on the facts and level of harassment. In some cases, the employee may obtain a financial settlement from their employer – if their employer committed the action or did not do enough to prevent the harassment arising. However, in other cases, the sanction given can be deemed excessive. A case from 2012 (2 AZR 651/13) demonstrates this fact. It concerned a car mechanic who was dismissed without notice for inappropriate behaviour but the court ruled that this was an excessive punishment. The ruling was based on the circumstances of the case and the court in question did not rule out extraordinary termination for a once-off action.
When dealing with cases of sexual harassment and other forms of discrimination it is worth bearing in mind some of the other legal protections afforded to those involved. For example, as mentioned above the victim has the right to refuse work under §14 AGG (although this step should be taken after receiving legal advice), the right to appeal and make complaint (§13 AGG) and the right to compensation and damages under §15 AGG. As well as these rights, there is also the right of those involved in such cases to not be victimised at work (§16 AGG) because they have acted or acted as witness in the case. Essentially, one should be aware of their rights in this area and should not be fearful of taking a particular course of action.
Bullying in the Workplace
Not all harassment is of a sexual nature. Bullying cases also occur in the workplace and there are also remedies to avail of in these cases. As such, there is no “Bullying Act” but the employee is protected in some cases by the rights provided in the General Act on Equal Treatment / AGG (which has been mentioned earlier. This is particularly the case where the bullying is based on discriminatory grounds such as race, gender or religious belief. Furthermore, the employer has a duty of care towards their employees under §241 BGB. Due to this, the employer is obliged to make sure that the workplace is a safe environment for the physical health of their employees.
Bullying can have a similar negative impact on employees and can contribute to a decrease in motivation and productivity due to anxiety issues, insomnia and manifested physical problems. A workplace that permits bullying or a seeping bullying culture to exist can lead to a negative working environment being created. As an employer, one must be vigilant as bullying can manifest itself in a several ways:
- Exclusion and isolation,
- Humiliating the victim,
- Spreading of false information,
- Discriminatory actions or comments based on their race, gender, religious beliefs etc.
- Constant and / or unjustified criticism of their work.
Proving bullying can be more difficult than showing sexual harassment took place, but it is worth availing of legal counsel should the bullying prevent a person from working. For the sake of mental and physical health it may also be worth considering visiting a mental health professional should the issues affect the person on a deep level. Approaching your employer about the bullying should be the first step one takes. However, where they have not acted, not taken sufficient action or are themselves the source of the bullying then it is time to consider legal action.