Have you updated your company’s policy on sexual harassment?

The legislation states:

Sexual harassment is defined as: “a behaviour of a sexual character or other gender-based behaviour discriminating women or men’s dignity in the workplace”.

Such a behaviour is regarded as unacceptable, if

a) The behaviour is unreasonable, offensive or unwanted by the offended party
b) The behaviour creates a working environment for the victim which feels frightening, humiliating or hostile, and/or
c) An employee’s acceptance or rejection of the behaviour has consequences for the employee’s salary or working conditions, possibilities for promotion, (continuous) employment or similar.

It is the victim’s view of what seems offending that decides if a certain behaviour can be regarded as sexual harassment in a specific situation. It is therefore not the harassing person who decides when a behaviour is regarded as harassment.

In 2002, the directive on equal treatment in the workplace, implemented by the Equal Treatment Act, stated that sexual harassment is deemed a discrimination based on gender.

Sexual harassment is thus also defined in section 1(6) of the Equal Treatment Act which states “Sexual harassment is taken to occur when any form of unwanted verbal, non-verbal or physical behaviour with a sexual undercurrent is exhibited for the purpose or the effect of violating a person’s dignity, in particular by creating a threatening, hostile, demeaning, humiliating or unpleasant environment”.

The Equal Treatment Act further states that an employer must treat men and women equally in connection with employment, promotion and dismissal and as regards the working conditions etc. The purpose of the Equal Treatment Act is thus to protect employees against sexual harassment, however the act also protects the employee in situations where the employee’s manager either does not react to or handles any sexual harassment situations in the workplace, or if handling the situation creates negative consequences for the employee as a result of reporting the situation.

If an employee is exposed to sexual harassment, chapter 6 of the Equate Treatment Act stipulates that the employee is entitled to compensation.

How the employer should react:

The employer should naturally always prevent but also handle matters regarding potential sexual harassment in the workplace and thereby ensure a good and safe working environment.

Bird & Bird therefore recommends that employers have a company policy or a section in the employee handbook which clearly states the prohibition against sexual harassment, and which dissociates the employer from sexual harassment in the workplace. Bird & Bird further recommends that the employer maintains procedures specifying how such matters can be reported and how these will be handled.

Should you have any questions or require assistance with the drafting of a policy or if you have a potential sexual harassment situation, Bird & Bird is happy to assist.