What is considered sexual harassment 1
What applies to sexual harassment in the workplace?
Sexual harassment is often subtle. Where does it begin, how can employers take preventive action and what should be done in the event of suspicion?
Sexual harassment in the workplace can lead to a particularly stressful situation. It is therefore all the more important to sensitize employees and to create an environment that is as free of harassment as possible through appropriate preventive measures. Employers are also obliged to do this under the General Equal Treatment Act (AGG). Should (possible) sexual harassment occur in spite of all prevention, employers must act immediately upon becoming aware of it. The AGG also prescribes this. But when does sexual harassment actually begin in the workplace and how should employers actually behave?
When does sexual harassment start?
In everyday life, sexual harassment within the meaning of the AGG is often still equated with evidently aggressive and physical behavior. In the workplace in particular, sexual harassment often takes place in a much more subtle manner. While there is a great deal of sensitivity for this in the USA, for example, sexual harassment at work in Germany is often played down or classified as behavior that is still common. In the case of an undesirable grip under the skirt, there will hardly be two opinions. If, however, unwanted comments of sexual content or alleged compliments are made, such as “You look very enchanting again today”, “You really don't have to pay attention to your weight” or “With your appearance, surely hardly a customer can resist you” it often looks different. The same applies to requests, especially from a manager, to meet for two in the evening. Some people try to justify such behavior by saying that it was only meant nicely, but in any case only "bad behavior" or "wrongly expressed". In fact, even such supposedly harmless behaviors can be sexually harassing.
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Although the Federal Labor Court has already expressly made it clear that purely verbal harassment can be just as serious as physical sexual harassment and that it is by no means in a less serious spectrum, the case law has so far mostly only contained extreme cases that had to be judged. At first glance, this is surprising, as it is precisely not the extreme cases that make up the majority of sexual harassment in the workplace. In fact, this is only a reflection of how we deal with sexual harassment in the workplace in practice. Since there is often still a lack of awareness of when sexual harassment has already occurred, only extreme cases are often reported or followed up. In addition, labor law consequences are often only drawn in extreme cases.
Raising awareness among employees
In order to generally sharpen the understanding of when sexual harassment can already exist in the workplace and to protect the rights of those affected, it is advisable not to wait until the first complaint becomes serious, but rather to clarify the matter in advance. Employers should draw up internal codes of conduct or values and train their employees on a regular basis. In doing so, they not only comply with their statutory obligation under Section 12 (1) sentence 2 AGG to take preventive action in order to counteract discrimination and thus sexual harassment in the workplace. They also rule out possible liability for damages and the accusation of not having created a working environment free of disadvantage.
Obligation to adhere to a code of conduct or values
Employers are therefore advised to introduce a (group or company-wide) code of conduct or values, to which all employees should expressly commit themselves. Such a code should clearly state that the employer has a zero tolerance policy towards sexual harassment and that violations are punished with sanctions under labor law up to and including extraordinary termination without notice. Obliging employees to comply in writing also has the advantage that the inhibition threshold for committing sexual harassment increases in some people and - should one still be committed - a violation of this code of conduct or values in addition to the AGG is accused can.
A whistleblower system or a complaints office must also be set up and named in such a code so that any complaints can be easily submitted and then processed quickly and efficiently. It should be noted, however, that depending on the specific design of such codes, any existing works council may have co-determination rights, which is why it may have to be involved.
When defining specific procedural rules in writing for dealing with any complaints, however, caution is required so that employers do not unnecessarily commit themselves when carrying out an internal investigation and make the result of their investigation vulnerable if the procedural rules specified in advance are not complied with.
Implementation of in-house training
In addition, regular training should be carried out in which respectful behavior and, above all, sexual harassment should be defined and demonstrated using examples that even supposedly harmless expressions, hints or gestures of sexual content can represent sexual harassment and as such are in no way tolerated . It makes sense to carry out these training courses separately for certain company levels in order to be able to show specifically and individually, depending on the hierarchy level, where and how sexual harassment can occur in everyday working life. Because even more stringent standards are to be applied at management levels, not least because of their position of power and the existing relationship of superiors and subordination. In addition, written documentation is very important. The contents of the training should be recorded, lists of participants should be kept and training should be repeated at regular intervals. If there is a works council in the company, it should be noted that it may also have co-determination rights in the design of such training courses.
In the event of allegations of sexual harassment, prompt clarification is required
Despite all preventive measures, however, no employer is filmed to prevent sexual harassment in the work environment. If employers become aware of potential sexual harassment, act quickly. The employer or the complaints office set up by him must immediately initiate investigations to clarify the facts. According to Section 12 (1) of the AGG, employers are not only obliged to protect their employees from discrimination and, in particular, from sexual harassment. In accordance with Section 12 (3) of the AGG, you must also take suitable, necessary and appropriate measures to prevent renewed sexual harassment. These protection and care obligations towards the (allegedly) harassed person collide with the protection and care obligations of the employer towards the accused, who must not be exposed to unreasonable investigations and / or disproportionate measures.
Quick clarification also to preserve the possibility of a termination without notice
However, it is also important to act swiftly, since accusations of sexual harassment always include the possibility that the accused person may ultimately be terminated without notice. According to Section 626 (2) of the German Civil Code (BGB), such termination can only take place within two weeks from the point in time at which the person or persons entitled to terminate became aware of the facts relevant to the termination. As long as the employer justifiably and in the necessary haste carries out further investigations to clarify the facts, this period is suspended. In any case, it begins when the investigations of the facts have been concluded. However, it can also begin before the investigation of the facts has been concluded if the investigation is not carried out quickly in the necessary haste and / or the investigation is interrupted or paused without this being based on understandable and unavoidable reasons.
Careful but speedy investigative work is essential
Employers or the complaints office set up by the employer should therefore carry out a careful and neutral, but as swiftly as possible, investigation and record the individual investigation steps and any unavoidable pauses in investigation in detail. In practice, it has proven useful to have such examinations carried out by external third parties in order to ensure a neutral approach and thus make the examination result less vulnerable. In this way, more promising attempts can also be made to fend off any claims by the employees affected by the investigation about individual investigation steps and statements. In any case, it is urgently advisable to seek legal advice during such an investigation, not least in order to overcome the numerous stumbling blocks under data protection law. In general, the following steps in particular should be heeded during a corresponding examination:
Interviewing the person (allegedly) affected by the sexual harassment
The person (allegedly) affected by the sexual harassment should (again) explain the relevant circumstances in their own words. For reasons of evidence, at least two interviewers should always take part in the (virtual) interview, one of whom is not allowed to be a manager. In addition, the (virtual) conversation should be recorded in detail and then, if possible, signed by everyone involved in the conversation. A subsequent written confirmation from the (allegedly) affected person would also be recommended.
Conversation with the accused and the opportunity to comment
The accused should then be informed of the ongoing investigation. This should be done either in writing or as part of a (virtual) conversation - with the participation of at least two people on the part of the employer, one of whom in any case may not be a manager, and with full written records. The accused should be informed as specifically as possible of the allegations they are accused of. She should also be given the opportunity to comment on the allegations and, if necessary, to bring forward exonerating circumstances. In order for this hearing to also be suitable for a later possibly required termination (i.e. termination is not based on proven facts, but on the urgent suspicion of significant breaches of duty, for which a so-called suspicious hearing of the accused is required in advance), the accused must Person should generally be heard within one week from the point in time at which the persons entitled to terminate have become aware of the possibly termination-relevant facts.
Assess the preliminary results and determine whether further educational measures need to be taken
As part of the internal investigation and especially after hearing the accused, it must be continuously checked whether further clarification measures are necessary (e.g. questioning other people). Because not only according to the AGG, an internal investigation into sexual harassment must be carried out and brought to a conclusion as quickly as possible. The two-week notice period must also be observed in the event that extraordinary termination without notice becomes necessary, which in any case begins from the point in time at which the internal investigation has been completed and no further investigative measures are required or promising.
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