Sexual harassment

Sexual harassment is a behaviour or activity of a sexual nature, which demeans a person’s dignity and disturbs, disparages, demeans or insults him/her.

A behaviour is considered to be sexual harassment if it matches the following four conditions:

  • it is see unwanted by the victim (this must also be expressed by the victim, or it must be clear in some other manner that the victim finds a certain behaviour disturbing and against his/her wishes)
  • it is of a sexual natuure
  • it is either verbal, non-verbal or physical
  • its aim, or actual result, is to demean a person’s dignity, creating a disturbing, threatening, hostile, disparaging, demeaning or insulting atmosphere.

The concept of sexual harassment is defined in Point 5 of Subsection 3 (1) of the Gender Equality Act .

Examples of sexual harassment
Sexual harassment is illegal
What should I do if I’m a victim of sexual harassment?
Proof
Opinion of the Commissioner

Examples of sexual harassment

  • an employer or colleague, client or sales assistant makes unwanted advances towards another person, tries to make physical contact which makes the other person feel uncomfortable. For example, places his/her hand on the other’s knee, tries to embrace the other person
  • despite refusals, the harasser makes repeated approaches to the other person about entering into a sexual relationship
  • an employer, manager, client or some other person who is in a position of responsibility, uses his/her position to influence or force the other person who holds a subordinate position, to enter into an intimate relationship with him/her, to carry out acts of a sexual nature, or other such behaviour
  • a person sends another person disturbing or suggestive cards, text messages, emails or comments.

Sexual harrassment is illegal

According to the Gender Equality Act, sexual harassment is direct gender discrimination and is therefore illegal. In addition, the Employment Contracts Act states that the employer must ensure that employees are protected from discrimination. The Gender Equality Act expands on this by obliging employers to take care that employees are protected from gender and sexual harassment in the workplace. If employers do not fulfil this obligation, their inactivity is equated to discrimination.

Sexual harassment disturbs work, study and other environments, and it can have serious consequences to the victim’s health, self-confidence, mood and ability to work. This is why it is important to draw attention to such activity at an early stage. Due to serious consequences, the victim of sexual harassment often also requires psychological help. The anxiety and stress created by sexual harassment often results in the victims taking sick leave or even changing jobs.

As opposed to popular belief, sexual harassment does not mean only physical contact: comments with a sexual undertone, or facial expressions, can also be considered to be sufficient.

What should I do if I’m a victim of harassment?

The victim of harassment has a number of options in seeking help, one of which is applying to the Equality Commissioner who has the right to require information from all participating parties, and who can provide a legal opinion.

Proof

In cases of harassment the issue of proof is problematic. Victim statements, on their own, may be insufficient. This is why it is important that the victim take note of the incident by recording the date and time. If the incident happened to be witnessed by other persons, this should also be noted, just in case, since in such situations it is witness statements in particular that may prove to be vital evidence. It is also very important to keep letters, cards, emails, text messages, etc, sent by the harasser. If the harasser has used a telephone to make contact, a certified statement of incoming calls can be obtained, which would confirm that the harassment had taken place.

Since both short-term and long-term harassment may have a detrimental effect on the victim and there may be a need for medical or psychological assistance it is important to note and collect all documents that prove the medical expenses incurred due to the health problems caused by the harassment (medical certificates, receipts for medicines and medical services, cost of transport to consult doctors, etc). The victim may also suffer damages due to being forced to relocate, or the fact that the employee – due to the behaviour of the manager – has not been able to benefit from further training, business travel, he/she has missed promotion, etc. Additonal information and documentation are helpful in ascertaining harassment, and can assist in determining the extent of the possible violation of rights.

In addition to ascertaining harassment, the collection of proof is also necessary if the victim decides to take the case to the labour dispute committee or to the court, in order to claim compensation for material or moral damage.

Opinion of the Commissioner

Although the Opinion of the Commissioner is not legally binding, this does not mean that the Opinion lacks influence. The Opinion of the Commissioner on whether discrimination has or has not taken place is of assistance to the victim in taking further steps to protect his/her rights, and provides guidance to other bodies dealing with legal protection. The Opinion of the Commissioner therefore gives a person greater clarity, and confidence as to whether his/her suspicion of discrimination is justified, and whether there are sufficient grounds to apply to other institutions.

When the Commissioner has provided his/her Opinion, and considers that discrimination has taken place, the victim of the harassment, if he/she so wishes, can address those institutions that resolve discrimination disputes – i.e. the court, labour dispute committee and for conciliation procedures, the Chancellor of Justice. Discrimination disputes can be resolved in the labour dispute committee in cases where the harassment takes place in workplace relations.