The issue of sexual harassment has become an important topic in the last number of years. It is more openly discussed than it was in previous times and there are more protections for employees than ever before. Employees should be able to go about their daily business without being harassed, bullied or discriminated against.
At Schlun & Elseven Rechtsanwälte, our employment lawyers advise employers and employees in matters of sexual harassment, discrimination and bullying in the workplace. Our team advise on best-practice guidelines and how to implement suitable regulations in the workplace. If you require assistance from our certified specialists in employment law, please do not hesitate to contact our team.
Sexual Harassment under German Law: Definitions
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 specific actions depends on the person and situation.
German law defines 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”. 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 further states 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 various 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 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 a harassing nature.
It will be considered if the atmosphere within the company is intimidating or hostile. However, it is not vital to prove the harassment. The victim should consider legal action, whether the harassment comes from one co-worker, many co-workers or the firm’s boss.
Legal Consequences of Sexual Harassment
The consequences of sexual harassment include cautions given to the perpetrator and dismissal of the employee. The sanctions arising from the case will depend 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 act or did not do enough to prevent the harassment from 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 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 sexual harassment and other forms of discrimination, it is worth bearing in mind some additional legal protections afforded to those involved. For example, the victim has the right to refuse work under §14 AGG (although the employee should take this step only after receiving legal advice), the right to appeal and make a 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 not to be victimised at work (§16 AGG) because they have acted or acted as witnesses in the case. Essentially, one should be aware of their rights in this area and not fear taking a particular course of action.
At Schlun & Elseven Rechtsanwälte, our employment law specialists are ready to advise you on all these matters.
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. There is no “Bullying Act”, but the employee is sometimes protected by rights provided in the General Act on Equal Treatment / AGG.
This protection is mainly 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 ensure that the workplace is a safe environment for the physical health of their employees.
Bullying can have a similar negative impact on employees and 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 hostile working environment being created. As an employer, one must be vigilant as bullying can manifest itself in 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 or unjustified criticism of their work.
Proving bullying can be more complex 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 deeply.
Approaching your employer about bullying should be the first step one takes. However, it is time to consider legal action if they have not acted, have not taken sufficient action or are the source of the bullying.
Employer Obligations to Prevent 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 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 dismissing them. Depending on the severity of the offence, the perpetrator could even face a prison sentence, as, 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.
Therefore, employers have many responsibilities relating to preventing sexual harassment in the workplace. Should they not take action to prevent it, there can be severe 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 ensure that there is a procedure in place where all employees know what actions are inappropriate, what the system is to make complaints and what sanctions are in place for perpetrators.
By taking such actions, the employer should reduce the number of harassment actions and create an environment where employees feel safe and perform at their best. Employees who feel safe and respected in their work will perform better than those who do not.
Cooperation with work councils is recommended in this field, as is discovering the best practice. Having the employees onboard with the steps that should be taken is one way to ensure 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 on the best course of action.
However, should your employer not take the required disciplinary actions, it is worth considering availing of legal assistance. Having a lawyer with experience in sexual harassment cases can help you pursue your claim.
In the workplace, §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.
Other Consequences 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.
If your company is interested in implementing guidelines relating to sexual harassment and bullying prevention, please do not hesitate to contact our legal professionals. They have assisted companies of all sizes in such workshops.
Practice Group: German Employment Law
Practice Group:
German Employment Law
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