In recent months society has been inundated with an unprecedented level of accusations against high profile individuals ranging from Hollywood heavy weights, social influencers, public figures and even Presidents combined with the increased antisocial online behaviour motivated by atypical social rewards has truly lifted the lid off of matters. This is not a problem attached to foreign shores, exposures nationally have reminded the general public of the secret nature of the offence of sexual assault. We have witnessed a number renowned Irish media figures being labelled sexual harassers. A recent example is the accusations against the former Gate Theatre director, Michael Colgan, by a number of former colleagues. Such disclosures have not solely been reserved to such high profilers and public persona’s. The sexual assault and harassment allegations against the Hollywood elite, Congressmen and news anchors has triggered a wave of “me too” allegations. The social media campaign which encouraged disclosures globally under the #MeToo platform has enabled and empowered women predominantly to register their own personal experience(s) of sexual harassment in the workplace in solidarity. The momentum and ramifications of recent accusations have ignited a global debate on the liability of employers and the clear necessity to conduct a comprehensive review of the parameters in place to deal with such claims. Social media has become a prominent platform for activists and politicians alike to promote their agenda. When the messaging service “Whatsapp” launched it quickly became the main messaging facility for group messaging. Like all lucrative inventions the app’s system of secure end to end encryption protection also attracted those with a more sinister intent, with the result that cyber bullying and/or harassment ensued, which has caused its own difficulties. As you are no doubt aware, this behaviour can include posting rumours, threats, sexual remarks, a victims’ personal information, or pejorative labels to online fora, including Facebook, Twitter, gaming for a, WhatsApp, etc. However, the protected environments have created a whisper network which in turn has resulted in the mass disclosure of sexual abuse scandals. The Whatsapp messaging forum played a crucial global role on reporting sexual harassment in politics, media and journalism. The ease that information can be shared has meant that abusers may no longer hide their illicit acts. Victims are now more empowered to record and report explicit pictures, crude messages and harassing voicemails. In the United States Non Disclosure Agreements (NDA) and arbitration agreements have been used to force employees to sign away their rights. However, these provisions are now the subject of challenge in some US States who are calling for measures to limit the use of both mechanism which they contend protect the harassers and silence their victims.
2. European Position – Background
The term “sexual harassment”, especially within the workplace, is a relatively new concept across the European Union. Many Member States reported a low awareness and cultural lack of acceptance, equating it to simple banter to make the workplace feel less austere. Sexual harassment initially fell under the umbrella of unequal treatment as per Council Directive 76/207/EEC1 which prohibited unequal treatment on the grounds of sex as regards to access to employment. The principle of equal treatment provided that there shall be no discrimination whatsoever on grounds of sex. This prohibition of unequal treatment on the grounds of sex was later expanded by the Framework Equality Directive 2000/78/EC2 which prohibited harassment on the ground of race, religion, disability and sexual orientation. It was not until the adoption of Amended Equal Treatment Directive 2002/73/EC3 that Member States were required to outlaw sexual harassment. This Amended Equal Treatment Directive 2002/73/EC defined harassment related to sex and sexual harassment as discrimination and placed a proactive obligation on Member States to specifically outlaw sexual harassment.
- harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
- sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
Article 2, paragraph 3 of the Amended Equal Treatment Directive 2002/73/EC further provided:
- Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. A person’s rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person.
Following this the Recast Directive 2006/54/EC4 (the “Recast Directives”) repealed Directive 2002/73/EC. The Recast Directive retained the above definitions and widened the scope of application of the provisions on harassment relating to sex and sexual harassment. Paragraph 6 of the preamble stipulated that:
- Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties.
The purpose of the Recast Directive was to better address harassment related to sex and sexual harassment in the workplace and in respect of access to employment, vocational training and promotion. Paragraph 7 of the Recast Directive placed a positive obligation on employers and those responsible for vocational training to actively:
- take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventive measures against harassment and sexual harassment in the workplace and in access to employment, vocational training and promotion, in accordance with national law and practice.t
Article 26 of the Recast Directive also called upon Member States to “encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace, in access to employment, vocational training and promotion”. The Recast Directive further prohibited victimisation and encouraged Member States to take effective measures to prevent all forms of discrimination on the grounds of sex, in particular harassment and sexual harassment.
3. Sexual Harassment (Irish context)
Sexual harassment is recognised as constituting an intolerable affront to the dignity of men and women at work. It is prohibited as being a form of discrimination under Irish law and is defined (in accordance with the Directives) under section 14A of the Employment Equality Acts 1998 – 2015 (the “EEA”), specifically, section 14A (7) (a) (ii) of the EEA as: “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A (7) of the EEA further extends the definition to: “such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”. The statutory definition is subjective and includes conduct that creates an offensive environment for the person. The definition for sexual harassment comprises of two essential parts: (i) Unwanted – subjective approach depending upon each claimant. (ii) Violation of dignity – sexualised expressions or conduct touch upon an aspect of a person’s life that is intensely connected to their self-esteem and dignity. Exposure to such behaviour should always be experienced on a voluntary basis, wherein they retain complete freedom to reject such activities where unwanted. Sexual offences are not only an intrusion on bodily and mental personal integrity, but also a violation of personal human dignity. Subject to section 14A (1) (a) (i -iii) of the EEA, employees are protected from being subjected to sexual harassment from: – Their employer; – Fellow employees; – Clients; – Customers; or – Any other third party with whom the employer may reasonably expect the employee to come into contact with in the workplace. The Labour Court recently reaffirmed in Dublin Bus v McCamley (a case concerning harassment on race and religious belief grounds) that section 14 A EEA applies to conduct that occurs outside the workplace. Moreover, there is no requirement to show that the perpetrator was acting in the course of, or within the scope of their employment. In this matter:
- The claimant was an activist in SIPTU during the course of his employment with the respondent.
- SIPTU and the National Bus and Rail Union (NBRU) both represented drivers employed by the respondent and there existed a history of inter-union rivalry between the two unions.
- Following a conciliation conference at the then LRC in a dispute involving the respondent and both unions, a member of the NBRU, who was also an employee of the respondent, posted disparaging and offensive remarks relating to the religion and nationality of the claimant on Facebook (the Facebook incident).
- The claimant made a formal complaint to his Manager in reliance on the respondent’s dignity at work policy but was advised that no action could be taken as it had occurred outside of the workplace. He appealed this decision before the head of Human Resources of the respondent who held that the respondent had a duty to investigate the complaint on the grounds that the company rule book provided “Employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees”.
- Ultimately, disciplinary sanctions were imposed against the accused harasser, but a delay of six months occurred first as a result of the accused’s absence on sick leave. * In his claim before the Labour Court, the claimant said that the Facebook incident and a number of earlier incidents of harassment were part of a pattern of discriminatory treatment against him by fellow employees.
- These included:
- an incident of assault which occurred on an occasion when the respondent was attending a function hosted by the Respondent
- graffiti of a personalised and highly offensive nature about him in a staff toilet, which he submitted that it took weeks to have removed.
- The claimant submitted that the respondent failed to take effective measures in order to prevent the harassment and was therefore not in a position to avail of the defence prescribed under section 14A (2) of the EEA.
- The Labour Court held that the offending comments posted in the Facebook incident were intended to impact on the claimant while exercising his role as a worker representative, a role he performed in the course of his employment and that the respondent would be liable for harassment unless it could avail of the defence provided by section 14 A (2) of the EEA.
- As regards the other incidents, the claimant did not make a formal complaint to the respondent about the assault in 2008 and it had occurred four years previously so the Labour Court could see no basis upon which it could be held that it was sufficiently connected to the Facebook incident so as to be characterised as manifestations of the same harassment. The graffiti was not formally complained of until the Tribunal hearing in 2014 and thus was statute barred.
- In respect of the Section 14 A defence, the Labour Court noted that the respondent had a policy against harassment at work in its employee handbook. Although it did not prescribe a provision specifically prohibiting harassment via the use of social media, the Labour Court considered that the provision covered a wide ambit of acts and further noted the extent of publication by the respondent to its employees. As a result, it accepted that the respondent had the ability to avail of the defence of that EEA provides under section 14A (2). There is no requirement to show that the perpetrator was acting in the course, or within the scope, of their employment. The proper test is whether the victim experienced harassment in the course of their employment.
Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 The definition under section 14A (7) (a) (ii) of the EEA was bolstered by the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (“the Code”) which acts as a practical guide for employers, employer’s organisations, trade unions and employees on: – what is meant by sexual harassment and harassment in the workplace; – how it may be prevented; and – what steps to take if it does occur to ensure that adequate procedures are readily available to deal with the problem and to prevent its recurrence. The purpose of the Code is to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected. It is applicable to all employments, employment agencies and trade unions that are covered by the EEA. The provisions of the Code are admissible in evidence; however, the Code does not impose any legal obligations in itself. The Code defines sexual harassment as: “a form of discrimination on the gender ground in relation to conditions of employment” and endorses the definition provided for under Section 14 A (7) EEA. It provides that the definition is subjective in nature and must be unwelcomed behaviour which may range from persistent and continuous acts to a single incident which occur in the course of employment. In addition, it must also “have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”. The intention of the perpetrator is immaterial, the effect of the behaviour on the behaviour on the employee is what is relevant. The Code reiterates that prevention “is the best way to minimise sexual harassment and harassment in the workplace”. This is to be achieved by the implementation of an effective anti-harassment and dignity at work policy. The Code places emphasises on the employer’s duty to “adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.” The Code recommends that anti-harassment policies be communicated effectively to all those employees potentially exposed and should contain the following: – a definition for sexual harassment and harassment; – a non-exhaustive list of examples; – outline that the protection extends to sexual harassment and harassment by co-workers, clients, customers and other business contacts. That this extends beyond the workplace to work related events; – prohibit victimisation for rejecting/accepted the harassment or making a complaint; – that it extends to employment agencies or vocational training; - that the subject of the unwanted behaviour is up to the employee to decide; and – provide a comprehensive complaint and investigation procedure. The Code states that sexual harassment can have a “devastating effect upon the health, confidence, morale and performance of those affected by it” and further outlines the adverse effects of harassment for employers including the effect on profits as a result of absenteeism, possible sick pay and loss of staff members. Although the Code is not legally binding upon employers, it has been recognised as a source of guidance and defence and may be referred to in litigation under the EEA. Any failures to adhere to the terms of the Code will weaken an employer’s defence that reasonable steps were implemented. Defence for employers: Section 14A (2) of the EEA provides an employer with a full defence against a claim of harassment or sexual harassment where the employer may prove they took such steps as were reasonably practicable to: (a) prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim; and (b) prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects. An employer should demonstrate that reasonable preventative measures were taken before the occurrence of the offending conduct. It is recommended that an employer have in place anti-harassment and dignity at work policies and that they are effectively communicated to all employees. In addition, managers should receive appropriate training in respect of the complaints procedure and preventative measures. It will not be sufficient for an employer to show that a policy was in place without being able to demonstrate that the managers responsible for its implementation understood the content and importance of adherence to the policy. Sexual harassment by non-employees The protection can apply to conduct that occurs outside the workplace. A Worker v A Hotel (DEC E2009 062) * Employer can be liable for the actions of its customers; * On the first occasion Mr. A, a customer, approached the claimant in the kitchen area of a hotel whilst she worked, he positioned himself behind her and wrapped his arms around her. The claimant broke free and walked away from the customer. * Approximately half an hour later the claimant was due to serve breakfast. However, she could not go out on the floor to work as she was unnerved by the customer seated there. * The claimant made a complaint to her manager Mr. B and was later summonsed to Mr. B’s office where she found Mr. A sitting. * Mr. A denied the accusation but offered a token apology and touched her on the shoulder to which the claimant found humiliating. * The claimant later made a formal complaint and requested notification of the procedures in place. * Mr. B met again with the claimant and advised that there were no further procedures. * At a later occasion in the course of her employment the claimant met Mr. A and Mr. B chatting socially at the bar of the hotel. She felt unnerved at the friendship and left her position on sick leave, eventually resigning. * The respondent was found to have no policy in place attempted to deal with the matter informally by seeking an apology from the accused. * It was held that the respondent’s manner of addressing the matter showed no concern for the claimant’s welfare and only served to aggravate the claimant’s feelings of intimidation and distress. * The respondent was found to be liable for the discriminatory dismissal of the claimant on the ground of sexual harassment experienced in the respondent’s employment. A Boys Secondary School v Two Female Teachers (Determination AEE/01/9) 2002 * Labour Court held that the employer had failed to properly exercise its control so as to protect the claimants by providing a place of work free from harassment. * The claimants were teachers in a boys secondary school and alleged that they were subjected to sexual harassment in the course of their employment by the students of the respondent’s school. * Students would stand up close to the complaints in a sexually expressive inappropriate fashion, submit sexually explicit material, make inappropriate comments and offensive remarks and attach post it notes to their person containing explicit sexual statements. * Complaints were made to the Board of Management of the school but it failed to take appropriate action to protect them. * It was held that the employer had not acted effectively to reverse the effects of sexual harassment and it was clear that the school board of management did not accept the gravity of the harassment.
Behaviour that constitutes sexual harassment
Ms A v Boards of Management Secondary School in the South of Ireland (DEC-E2015-146) * The claimant had been the subject of an unwelcome sexual approach by Mr. B whilst attending a colleagues wedding. * Mr. B was not a colleague of the claimant at the time but was connected to her position of employment via a sporting connection. * Subsequently Mr. B accepted full time employment in the claimant’s place of work. Upon discovery of this the claimant immediately reported her concerns to her employer. * The complaint was disregarded and Mr. B would stare and smirk at her when they would come into contact at work. * A climate of fear was created by Mr. B which was ignored by the claimant’s employer. * Following a further official complaint by the claimant an investigation was commissioned by an external principal. However, the conclusions were vague leading to an appeal which found in favour of disciplining Mr. B. * However, Mr. B infrequently showed up at the workplace causing continued distress to the claimant. * It was found that the employer failed to have taken reasonable and practicable steps to prevent further incidents of sexual harassment and was vicariously liable for the acts of Mr. B Instead Section 15 of EEA places vicarious liability on the employer who must firmly demonstrate that the alleged harassment did not take place or that reasonable measures were taken to prevent it.
No policies in place
Section 14A (2) of the EEA provides employers with a statutory defence against claims of discrimination on the ground of sexual harassment. The defence may be available where the employer can show that they took reasonable and practicable steps to prevent harassment as well as implementing reasonable steps to reverse its effects. Catlan Trading Limited v McGuinness ADE/16/78 2017 * The claimant was a sales assistant in a store and made a complaint against an adjacent store worker alleging sexual harassment. * The claimant submitted that her employer failed to investigate appropriately or take effective measures. She claimed to have reported the harassment to her manager who told her to ignore it. At no point did she make a written complaint. * The respondent’s position was that the claimant never formally made a complaint. However, they did witness a harassing incident and immediately proceeded to take steps to prohibit the conduct complained of. Statements were taken from witnesses and the alleged harasser was suspended by his employer and removed from site. * The respondent wrote to the claimant apologising for the abuse and committed their support to her. * The respondent did not have in place an anti-harassment or dignity at work policy at the time of the alleged harassment. * The size or staff force of an employer does not exempt them from having in place reasonable measures to address this issue. * The respondent was found liable for the harassment suffered. Mrs C v A Multi National Grocery retailer E2015 – 079 * The claimant was employed as a cashier before being promoted to team leader. * She alleged that she was attending the store room one day when a security guard followed her, closed the door behind her and without warning started to grope her buttocks in a massaging motion. * She later approached her manager about the incident and reported that she was upset as regards to his causal acceptance of events. * An investigation was conducted however the accused was not suspended with pay during. The claimant also discovered the accused was permitted to read her official complaint. * As a result of the investigation she was informed that the only remedy available was to mark a comment on the accused’s file but could not proceed due to lack of evidence. No appeal was offered. * It was found that the respondent investigated the complaint inadequately. Managers gave evidence that they were not formally trained in or aware of the procedures involved with sexual harassment investigations. It was clear that the implementation of the policy was not effective. Little was done to prevent sexual harassment and even less was done to reverse its effects on the claimant. * The respondent was held liable for discrimination. The above case repeats the rule that an employer must demonstrate it took reasonable and practicable steps to prevent sexual harassment as well as steps to reverse its effects before they may avail of the statutory defence.
Equality legislation does not provide for liability on part of the individual harasser. Instead where harassment is perpetrated by an employee in Ireland, the employer will be directly liable. An employer will be legally responsible for sexual harassment suffered by their employees in the course of their work. As a general rule a claim for discrimination/harassment on the ground of gender must be submitted to the Workplace Relations Commission within 6 months of the last act of the discrimination8. The claim can be heard by a sole adjudicator in private. Redress for acts of discrimination is provided for pursuant to Section 82 of the EEA and is also actionable as a tort in a Circuit Court. he maximum amount which may be ordered by way of compensation, for an employee is: – where the claimant was in receipt of remuneration at the date of dismissal, an amount equal to the greatest of: (i) 104 times the amount of that remuneration, determined on a weekly basis; (ii) 104 times the amount, determined on a weekly basis, which the claimant would have received but for the act concerned; (iii) €40,000; – in any other case €13,000 (Non-employee). The Circuit Court may, pursuant to section 82 of the EEA, make an order the following: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral; (b) an order for equal remuneration from the date of the referral; (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. It is important to note that no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration, which may be ordered by the Circuit Court in gender discrimination claims. The trend for sexual harassment claims is that increasingly they are being issued by Plaintiffs in the Circuit Court because the case can be heard publicly and there are not the same restrictions or limits on compensation. Other developments: Employers can also face High Court proceedings for personal injury, where the recipient of harassment can establish that he/she has sustained a psychiatric injury as a result of the harassment. If the claim is successful, compensation for injury, loss of earnings and loss of future earnings may be awarded. General damages for injury are generally no more than €60,000 and, in practice, loss of earnings is not often awarded (although this may change and depend on the individual circumstances of the case). These claims must be brought within 2 years of the cause of action. A recent High Court judgment, Lyons v. Longford Westmeath Education and Training Board  IEHC 272, has potentially troubling ramifications for sexual harassment complaints in the workplace. Lyons does not pertain to sexual harassment but rather to an employer’s bullying investigation, in respect of which the High Court found that the alleged perpetrator of bullying ought to have been permitted legal representation during the investigation process and, furthermore, that he or his lawyer ought to have been permitted to cross-examine the claimant. Because the alleged perpetrator had not been afforded these entitlements, the process was deemed in breach of his Constitutional right to fair procedures and the employer consequently had no right to proceed to disciplinary hearing. The case to an extent turns on its particular facts, and on the particular High Court judge. However, there are some concerns about the potential dampening effect it could have on complaints of sexual harassment. The decision is currently under appeal. Irish Congress of Trade Unions has recently called for complaints of sexual harassment to be covered by the Protected Disclosures Act 2014. The Council of the European Convention on preventing and combating violence against women and domestic violence, otherwise referred to as the Istanbul convention10, adopted that parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to a criminal or other legal sanction.
4. European Member States
Most European countries have implemented the prohibition of sexual harassment through specific anti-discrimination legislation, often with a broader scope than those provisions provided for under the Directives and covering working life and course of employment. However, the implementation of harassment protections may be seen to effectively be hidden behind more general regulations against victimisation or violence at work, competing with more general forms of mobbing or bullying. UNITED KINGDOM Section 26 Equality Act 2010 provides that sexual harassment occurs where a person engages in ‘unwanted conduct of a sexual nature’ the purpose or effect of which is to violate the claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for him or her11. The prohibition applies to employment, education, housing, the provision of goods, facilities and services, and the delivery of public functions. The definition complies with that in Article 2 (1) (c) of Directive 2006/54. In respect of the harasser financial liability is at the discretion of the Equality Tribunal. There exists the potential for criminal liability if assault or harassment falls within the Protection from Harassment Act 1997, sanctions may include a fine, community service or a prison sentence. Financial liability is also at the discretion of the Equality Tribunal with regards to the employer. Should the employer and employee both be liable then they will be jointly and severally liable. Compensation for discrimination and harassment is based upon the loss suffered by the victim. This is assessed as (a) financial loss (including past and future earnings, pension loss and loss of benefits) (b) non-financial loss (precedence dictates usually around £42,000 but may exceed this figure) and (c) potential liability for personal injury (e.g. psychiatric damages, aggravated damages or exemplary damages). The Equality Act 2010 prohibits harassment by employers and imposes vicarious liability on employers for the civil wrongs perpetrated by employees in the course of their employment. The prohibition extends to social functions and other such events that occur within the confines of the workplace. There exists no liability on employers for discriminatory acts by third parties. Pursuant to Hajrowski v Guy’s and St Thomas’ NHS National Trust12 employers may also be vicariously liable for the actions in respect of their staff. Recent developments: The most recent sexual harassment scandal resulted in the resignation of Michal Fallon from his position as defence secretary. His resignation follows in the wake of journalist Jane Merrick’s formal complaint to Downing Street accusing Mr. Fallon of lunging at her in an attempt to kiss her following a lunch in 2003. Ms. Merrick’s complaint follows numerous others against Mr. Fallon, such as lewd remarks reported by Commons leader Andrea Leadsom and groping reported by Julia Hartley-Brewer. It would appear that Mr. Fallon’s departure follows after a pattern of allegedly unacceptable behaviour over the course of many years. Mr. Fallon is not alone in respect of recent claims of sexual harassment. There have been a further string of Labour MPs who have had to respond to accusations in recent months. Tory MP, Charlie Elphicke, has been suspended from his position in lieu of “serious allegations” which the Tory party have passed to police. Labour MP Clive Lewis denied claims that he groped a woman during a conference in September 2017. MP Ivan Lewis who was formerly the Foreign Office Minister has rejected claims that he made non-consensual advances towards a number of women and Labour MP Helvin Hopkins has denied all allegations of inappropriate conduct made by activist Ava Etemadzadeh. FRANCE The initial definition of sexual harassment was found to be unconstitutional by the French Constitutional Court, which stated that the definition was not sufficiently clear or precise (CC 4 May 2012, QPC, No. 2012-240). This decision came as a bombshell, as it removed the prohibition on sexual harassment from the French Criminal Code. This decision left a legal vacuum in the Criminal Code as from the date of its publication no one could be convicted or punished on the ground of sexual harassment, as the offence no longer existed, and alleged offenders were systematically discharged. The French legislature quickly addressed this issue and a new law was adopted in August 2012. It includes a new definition of sexual harassment which is very similar to the European one (see Article 222-33 of the Penal Code and Article L. 1153-1 of the Labour Code). The new law defines harassment as imposing on someone, in a repeated manner, words or actions that have a sexual connotation and either affecting the person’s dignity because of their degrading or humiliating nature or putting him or her in an intimidating, hostile or offensive situation. One single act can also give rise to prosecution where someone is using any kind of serious pressure, with the real or visible goal of obtaining an act of a sexual nature. Where harassment is perpetrated by an employee, both the employer and the employee are liable. French principles of civil liability and French labour law provide that legal persons are responsible for the actions of their employees and legal representatives, which covers employees and managers of employees, trade unions and NGOs. The definition of harassment as prohibited by French labour law covers actions by people in authority and that of colleagues as well (Articles 1151-1, 1152-1 and 1153-1 LC). Furthermore, it provides for an obligation on the part of the employer to guarantee a safe work environment free of harassment (Article 1152-4 LC). This provision creates an obligation on the part of the employer to take all necessary measures to put an end to harassment in the workplace. In the public services the same principles apply. If the employer is not the perpetrator of the harassment, he remains responsible for the employee’s health and security matters. The employer is obliged to ensure the worker’s safety and failure to fulfil this obligation constitutes an inexcusable fault where the employer was or should have been aware of the danger to which the worker was exposed and did not take the necessary steps to protect them. Even without fault, the employer is still responsible if harassment occurs. Harassers face may be guilty of a criminal offence punishable by up to two years’ imprisonment and/or face a maximum fine of €30,000 subject to Article 222-33-2 of the Criminal Code. ITALY Article 26 of the Code of Equal Opportunities states that ‘Sexual harassment, that is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a worker, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’’ is also regarded as discrimination on the ground of gender. The scope of the domestic prohibitions appears to be the same as Directive 2006/54/EC. The only relevant difference is that Directive 2006/54/EC refers to ‘persons’ as being victims of sexual harassment, while Article 26 of the Code refers to ‘workers’, thus excluding any third parties present in the undertaking. Where harassment is perpetrated by an employee, the employer and the employee are liable. Since the legislative decrees are silent on the scope of liability for discrimination, the liability of those other than the individual discriminator must be established on the basis of the general principles of liability in contract and tort. In the case of a contractual relationship, such as that between employer and employee, the former is liable for the action of the latter, because there is a duty to ensure protection in the working environment. In the absence of a contractual relationship with the victim of discrimination (even in the form of harassment), the employer will be held liable in tort on the basis of the general principle of liability of the master for the acts of his servant (acts committed while performing their duties). The victim may sue the harasser before the Criminal Court seeking damages and criminal sanctions. A criminal action for sexual harassment may be brought under the general hypothesis of “harassment” subject to Article 660 of the Italian Criminal Code under which the harasser may be condemned to 6 months imprisonment or receive a fine of up to €51,600. The Italian Criminal Code further provides sanctions against cases of “sexual assault” pursuant to article 609-bis which is punishable by imprisonment ranging from 5 to 10 years. Interesting developments: The position of regional counsellor for “equal opportunities” (Consigliera di parità regionale) is a role introduced under Italian Law N. 125/1991. The regional counsellor’s specific function is to promote and monitor the effectiveness of equal opportunities (i.e. non- discrimination) in many areas, including the workplace. The counsellor has also the ability to participate as a third party in judicial claims involving discrimination and sexual harassment. SPAIN Article 7 of the Law of Effective Equality defines sexual harassment as “any verbal or physical conduct of a sexual nature, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, offensive or degrading environment”. The concept of gender-related harassment does not refer only to employment in Spain but to any aspect of life. From a criminal perspective, Organic Law 10/1995, of the Penal Code defines sexual harassment as “whoever requests favour of a sexual nature, for him/herself or for a third party, within the scope of employment, teaching or service provision, in a continued or habitual manner, and with such behavior provokes in the victim an objective and seriously intimidating, hostile or humiliating situation”. A harasser found liable under the Penal Code may face up to 1-year imprisonment or a fine ranging from anywhere between €850 – €170,000. Employers are also liable under the Penal Code for crime committed by their employees in the course of employment. Employers liable for harassment conducted by their employees on fellow staff members may be given administrative fines ranging from €6,251 to €187,515. Employers may also face further moral damages awarded to the victims. i. Ms. Nevenca Fernández case (2001) . – Mr. Ismael Alvarez was the Mayor of the municipality of Ponferreda (Castilla y León) and was convicted of sexually harassing his employee, Ms. Fernández. – The individuals initially shared a brief sexual relationship however, upon its conclusion Ms. Fernández was subjected to a series of conducts by Mr. Alvarez which affected her dignity in the work place. Ms. Fernández filed suit in March 2001 against Mr. Alvarez accusing him of grouping, humiliating public comments and sexual assault. – Throughout the trail Ms. Fernández was the subject of intensive media coverage which proved a grueling ordeal for her psyche. – Mr. Ismael Alvarez maintained throughout that he was the subject of a political lynching however, the three-court panel voted 2-1 to fine the accused and ordered him to pay damages to the plaintiff. – Although the accused avoided a jail sentence the decision was viewed as breakthrough for women’s groups as it was the first case to gain such high profile public exposure which encouraged women to report such behaviour. ii. Ms. Teresa Rodríguez case (2016) - Ms. Rodrigues, the general Secretary of a political party called “Podemos” filed a complaint against Mr. Manuel Muñoz Medina, a businessman and vocal of the Chamber of Commerce in Seville. – In 2016 the Chamber of Commerce of Seville invited Ms. Rodríguez to their Christmas celebration. Press releases state that Ms. Rodríguez went to the second floor of the building, wanting to greet both the president of the Chamber and its representatives. – In the stairway, presumably Mr. Medina lunged at her, pushing her against the wall and placed his hand over her mouth to pretend he was kissing her. – This conduct could constitute both a criminal offence towards Ms. Rodríguez’s moral integrity and a criminal offence towards a public authority, taking into consideration that Ms. Rodríguez is a public figure. – The case is being followed against the Instruction Court number 11 of Seville. Nevertheless, the sentencing has not been made public.
GERMANY Section 3 (4) of the General Equal Treatment Act and Section 3 (4) of the Law on Equal Treatment of Soldiers contains definitions of sexual harassment which are literally the same as in Article 2 (1) (d) of Directive 2006/54 with only one exception: both national laws do not continuously employ the term discrimination but Benachteiligung (putting at a disadvantage) without intending to weaken the protection as compared to the directives. In violation of Article 4(3) of Directive 2004/113, the prohibition of sexual harassment under Section 3(4) of the General Equal Treatment Act is restricted to the area of employment. The criminal offence of sexual harassment was added to the German Criminal Code in 2016 pursuant to section 184 (i) StGB. The offence of sexual harassment is now punishable by a fine or up to two years in prison. The new offence requires that offenders touch another person’s body in a sexually determined way which causes offence to the other person. Where the harassment is perpetrated by an employee, both the employer and employee may be held liable. Unlawful discrimination amounts to a breach of contract and an employee may bring a claim for damages against the employer pursuant to section 15 of the General Equal Treatment Act. Damages sought may include any material loss incurred by the employee and reasonable compensation for non-financial damage suffered. The victim also has the option to seek damages against the harasser in a civil law action.
CONCLUSION Despite the effectiveness in which the Directives were formally adopted by many Member States report a low level of awareness and often a lack of cultural acceptance for the legal protections afforded to instances of sexual harassment. There remains a sentiment and tolerance for milder forms of sexual harassment as being a characteristic of society. Often a sexism tolerant culture prevails in the workplace where strong patriarchal attitudes remain and women are not on an equal footing with men and when they do complain, they are not believed or they endure, more often than not, the negative consequences for doing so.