As an employer, you have to be proactive to ensure a harassment-free workplace. Below, we will zoom in on the legal definition of sexual harassment and give you an overview of the employer’s obligations and responsibilities. On Tuesday 16 January 2018, we will also hold a free morning meeting where you will hear more about how to prevent and handle sexual harassment at the workplace - you can register at the bottom of the page.

More and more cases concerning sexual harassment appear at the workplace, and the #MeToo campaign has also brought great focus on the problem.

It is therefore relevant to ask whether this is an actual problem, or whether social media is just going into overdrive. The answer is very simple: Sexual harassment at the workplace is a problem.

Both “ordinary” harassment and sexual harassment may have serious consequences for the employee being harassed, but also for the employee who is perhaps wrongfully accused of harassment. Further, as an employer, you may have to pay compensation to the employee if you are not conscious of your responsibility.

It is therefore important that all businesses - small and large - ensure a proper communication tone at the workplace and have guidelines as to the communication tone accepted and what to do in the event of a case.

WHAT IS SEXUAL HARASSMENT?

Harassment due to gender and sexual harassment are unlawful according to the Equal Treatment Act. The Act stipulates that “ordinary” harassment is any kind of unwanted verbal, non-verbal or physical conduct in relation to a person’s gender for the purpose of or with the effect of offending the person’s dignity and  creating a threatening, hostile, degrading, humiliating or uncomfortable climate.

The Act defines sexual harassment as any kind of unwanted verbal, non-verbal or physical conduct with sexual undertones for the purpose of or with the effect of offending a person’s dignity.

The difference between harassment and sexual harassment is therefore whether the unwanted conduct is aimed at the person’s gender (harassment) or has sexual undertones (sexual harassment).

PHYSICAL AND VERBAL OFFENCES

There are many examples of the nature and form of harassment and sexual harassment which may include both physical and verbal offences.

Verbal sexual harassment appears both in relation to a dirty tone of communication at the workplace which offends a colleague or an employee, or which the person is being pressured to be a part of, but it may also be more direct sexual indications or threats. It is also considered sexual harassment when offensive comments are made concerning the colleague’s or the employee’s sex life or sexual orientation, or if a colleague, uninvited and in details, talks about his/her sex life.

Sexual harassment may also be inappropriate physical contact or requests to provide sexual favours which exceed the colleague’s or the employee’s limits.

Finally, sexual harassment may also be a flirt which the colleague or the employee will not participate in, but where the offender does not respect the limit.

THE EMPLOYER’S RESPONSIBILITIES

As an employer you are not automatically responsible if an employee is exposed to sexual harassment.

Sexual harassment may appear in two different variations:

  • An equal-ranking colleague harasses a colleague
  • A superior harasses a subordinate.

In the first relation, the employer will generally only be responsible if the employer was informed about the harassment and did not take appropriate measure afterwards to stop the harassment. Appropriate measures will often be both in relation to the employee who is performing the harassment and the employee who is being harassed.

The sanctions towards the harassing employee depend on how offensive the harassment was. It is required as a minimum that the sanction will end the harassment. The employee who has been offended may perhaps be offered psychological counselling or relocation, if necessary, in order for the employee to feel safe in the future.

If the employer does nothing, the employer may be held responsible.

The employer may also be held responsible if the harassment is performed by a superior who has had management responsibility vis-á-vis the employee. The employer may be identified with the superior.

There are examples of employers having paid compensation of DKK 100,000 to employees.

UNWANTED SEXUAL CONDUCT IS DECIDED SPECIFICALLY

Sexual harassment may appear in many different forms, and what is acceptable to some may be very offending to others.

The question as to what is “unwanted sexual harassment” will therefore be decided specifically and depends on the offended person’s own limits, which often vary from person to person.

However, case law requires that it must involve action (conduct), and that the action is perceived as unwanted. In practice, you may perhaps talk about a lower limit of sexual harassment in relation to the specific situation. In other words, there is an objective as well as a subjective angle.

The conduct must therefore be objectively qualified for offending a person, and the employee or colleague must have been offended subjectively.

In several cases where the conduct has been of a less serious nature, but still unwanted, the courts have attached importance to the fact that the person feeling offended has not “objected” to e.g. statements, and that the offending colleague was therefore in some kind of good faith. In these situations, the courts found that the employee had not been subject to sexual harassment. These are examples that, objectively, the conduct was not offensive irrespective of whether the employee in question experienced the conduct as being offensive.

In another case, the court did not find that the employee had been subject to sexual harassment as the tone of communication was of such nature that the offending employee could not have known that his conduct offended a colleague.  

There is of course also a difference with regard to the relationship between the offensive person and the person feeling offended. If there is a big age difference or a balance of power between the persons involved, weight will not be given to the lack of manifestation from the offended person.  

THE EMPLOYER'S OBLIGATIONS

The employer is obligated to ensure a harassment-free working environment and to a reasonable extent protect its employees from harassment.

It is therefore important that the employer is at the forefront and prepares guidelines to ensure that the employees treat each other with mutual respect. At the same time, it is important to stress to the employees that any action - irrespective of form - which implies that a colleague is offended, or that a threatening, hostile, degrading, humiliating or uncomfortable working environment is created will not be tolerated.

The employer must take an employee’s information about sexual harassment seriously, and the employer must act by e.g. investigating the matter.

The harassment may then be stopped, and the parties involved must be helped to move forward. If it is necessary that the employees involved still cooperate, it may be an advantage to involve a mediator.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney