Sexual harassment in the workplace
Provisions of the Labour Code regulate the definition of sexual harassment in the workplace (art. 183a § 6). Sexual harassment means discrimination based on sex and consists of any unwanted conduct of a sexual nature or relating to the sex of an employee, the purpose or effect of which is violating the employee’s dignity. These behaviours may consist of physical, verbal or non-verbal elements. The perpetrator of such behaviour can be both the superior or a colleague.
Sexual harassment in the workplace is not only nonconsensual behaviour but also raises the belief that the objection will adversely affect the conditions of employment of the victim or the relationships in the workplace. The submission to harassment or sexual harassment or protecting oneself from it cannot inflict any negative consequences on the employee. (art. 183a §7 of the Labour Code).
These categories of behaviour can help to identify sexual harassment in the workplace:
- sexual harassment in the workplace can take the form of sexual blackmail. Most often, the employer, the immediate superior or a manager – someone who is higher in the hierarchy of professional relations than the victim is the perpetrator. Usually, a victim of sexual blackmail is threatened with being fired.
- another category of behaviour is creating an unpleasant atmosphere and hostile conditions in the workplace. Sometimes a colleague, not necessarily a supervisor, initiates such behaviour. In this category of behaviours, the victim usually hears humiliating comments in the presence of other employees, resulting in unfavourable working conditions and violating their rights.
Sexual Harassment – List of Behaviors
The most characteristic behaviours are:
- sexual gestures (stroking, hugging, touching)
- inappropriate comments on appearance or clothing
- using fondling phrases
- making direct proposals for sexual contact
- showing pornographic content
- sending inappropriate content (including drawings) to the victim by message or personal delivery of notes
Sexual harassment in the workplace – legal bases
The victim of sexual harassment in the workplace may refer to the following legal provisions contained in the Labour Code:
Article 111 obliges the employer to respect the dignity and other rights of the employee. The crime of sexual harassment destroys the inalienable and superior value of every human being, which is one’s dignity.
Violation of Article 112 and art. 113. The first article expresses the obligation of equal treatment in employment, in particular the lack of gender differentiation. The second article prohibits any discrimination in employment. Harassment means discrimination based on sex.
Violation of Article 15 and art. 94 points 4. The employer is obliged to ensure safe and hygienic working conditions. An employer who knew of the unlawful sexual conduct of one employee towards another should take appropriate action.
The Civil Code also contains provisions on the liability of perpetrators of sexual harassment – art. 23 and 24 of the Civil Code (Journal The regulations protect such values as dignity, freedom of conscience, physical integrity, and sexual freedom.
If you’ve been sexually harassed at work, you have the right to claim compensation or a perpetrator payment for the social purpose indicated by the victim. In the case of non-pecuniary liability for harassment, one may claim for the cessation of actions threatening or violating the employee’s rights or removing the violation’s effect.
Sexual harassment in the workplace is prohibited and regulated by labour law. On the other hand, some activities that constitute sexual harassment are crimes against sexual freedom and morality and are punishable by the penalties provided for in the Criminal Code. These include, among others, the crime of leading to submission to or performance of another sexual activity (art. 197 § 2 of the Penal Code) or the abuse of the dependency relation (art. 199 § 1 of the Penal Code) or the crime of leading another person to sexual intercourse by violence, unlawful threat or deception (art. 197 § 1 of the Penal Code).
It should be emphasized that it is the employer’s responsibility to prevent discrimination in employment. The perpetrator of certain behaviours is responsible for sexual harassment, while the employer is responsible to the extent that they have committed or did not prevent the contribution to harassment.
Enforcement of rights before the courts
By the Labour Code (art. 183d) An employee against whom an employer has violated the principle of equal treatment in employment has the right to compensation of at least the amount of the minimum remuneration for work, determined by separate provisions. The labour court individually determines the type and intensity of the discriminatory action of the employer. The law does not provide for an upper limit of compensation. On the other hand, the compensation awarded by the court includes compensation for damage to the property and non-property of the employee (e.g. personal dignity violation). Such compensation should make up for the damage suffered by the worker, and there should also be an appropriate proportion between the compensation and the employer’s breach of the obligation of equal treatment of workers. The compensation should be, above all, preventive. When determining its amount, the circumstances regarding both sides of the employment relationship should matter.
When examining a case of sexual harassment in the workplace, the court analyzes the purpose or effect of such action objectively. The facts presented by the employee must substantiate the existence of discrimination, which will create a favourable situation for the employee. Substantiation is not subject to strict rules of proof, while the facts must maintain the essence of credibility in the light of the rules of logic and life experience. When an employee makes an accusation plausible, the employer must prove that harassment did not occur. An extremely important element in the exercise of the rights of a person subjected to sexual harassment expressing lack of consent. It should be a clear sign of disapproval for the harasser. On the other hand, the employer must prove that it has taken appropriate steps to prevent this form of discrimination on grounds of sex, e.g. by responding decisively and promptly to an employee’s complaint, introducing and complying with an anti-discrimination policy in the workplace.