Harassment and sexual harassment as a form of discrimination
Harassment is unwanted conduct with the purpose or effect of violating the employee’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive atmosphere. Harassment occurs when the cause of unwanted behaviour is one of the discriminatory criteria, in particular: gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnicity, religion, sexual orientation, temporary or indefinite employment, full-time or part-time work.
Sexual harassment is a form of discrimination based on gender. To qualify as sexual harassment:
- must be sexual or relate to the gender of the employee
- must be unwanted
The purpose or effect of this action is to violate the employee’s dignity, in particular, to create an intimidating, hostile, humiliating, humiliating or offensive atmosphere.
Sexual harassment can occur in various forms (physical, verbal or non-verbal). Examples of such behaviour include:
- sexual blackmail
- inciting to sexual activities using one’s position
- dirty jokes or allusions
- presenting pornographic content, for example, drawings and videos.
A person experiencing harassment or sexual harassment should object to unwanted behaviour.
The objection may be:
- verbal, for example, direct addressing the perpetrator and communicating that you don’t want that kind of behaviour
- non-verbal, for example, avoiding contact with the perpetrator.
As a result of the objection expressed, the employer will be able to react to unwanted behaviours and counteract them. The objection is primarily relevant for court evidence. Case law of the courts indicates that the victim must substantiate that:
- there has been sexual harassment
- they objected to it.
Then it will be the employer’s responsibility to prove (and not to substantiate) that there has been no harassment. It’s an exceptional procedural situation in which the person initiating the proceedings (employee) does not have to prove their claims but only needs to substantiate them. In practice, employees present their version of events in the lawsuit and as part of the hearing. On the other hand, the employer must prove that the employee’s allegations are false and provide evidence confirming this.