Frequently Asked Questions about sexual harassment at work
Sexual harassment at work is any sexual conduct unwanted by the person concerned. It includes verbal and physical harassment, such as comments of a sexual nature or unwanted physical contact, as well as non-verbal forms of harassment, such as lewd looks or the showing of pornographic images. The latest study by the Federal Anti-Discrimination Agency shows the importance of this comprehensive protection: 62 percent of respondents experienced harassment in the form of comments of a sexual nature, 44 percent reported unwanted looks, gestures or catcalling and 26 percent reported unwanted physical contact.
What is particularly important here is that the law defines sexual harassment in terms of objective perception of what happened and not in terms of the intention of the harassing person. Thus, the key aspect is only whether certain conduct is objectively of a sexual nature and the person concerned felt harassed by it.
A study by the Federal Anti-Discrimination Agency shows that 9 percent of all employees (women: 13 percent, men: 5 percent) were subjected to sexual harassment at their place of work in the last three years. Such harassment was experienced across all sectors. While there are certain trends, for example that employees in the service sector are particularly frequently subject to harassment by customers, there is a risk of harassment everywhere – in every occupational group and in companies of all sizes.
The problem is this: while harassment is almost always perceived to be humiliating, threatening or psychologically stressful, many employees do nothing about it. Nor do they approach their supervisor, partly because the people concerned do not know how their own employer would deal with a complaint.
As an employer, you should therefore regard the prevention of sexual harassment as an integral part of health and safety protection at work.
You have a specific obligation to protect your employees against discrimination. In particular, that means you must do the following:
provide information within your company about statutory protection against harassment and take preventive measures to ensure a safer working environment (prevention and information obligation);
set up a department where employees can lodge complaints if they feel discriminated against or harassed at work (complaint department under section 13 of the General Act on Equal Treatment);
take every complaint seriously, examine the individual case and, if harassment has taken place, take protective measures to put a stop to the discrimination (obligation to take action).
Incidentally, you have the duty to protect your employees against all forms of sexual harassment, regardless of whether it is committed by superiors, colleagues, customers or other contractual partners.
The Act does not give any instructions about what specific measures you can take, because you know your company better than anyone else.
However, the more comprehensive the prevention measures, the smaller your liability risk and the more clearly aware your employees are that sexual harassment will not be tolerated within your company – an important signal both for the employees concerned and for potential offenders.
Putting out and hanging up leaflets, posters and information on counselling centres is one of the things you can do without disproportionate effort. In the long term, however, you can only ensure a safe working environment through education and training and, above all, by setting up a complaints department and establishing a clear complaints procedure. Concluding a works agreement is another effective way of preventing and tackling sexual harassment at work. In such an agreement, you can specifically state that sexual harassment is prohibited, lay down corporate prevention measures and make provisions for the complaints procedure in case of sexual harassment.
First and foremost, a good complaints procedure is tailored to your company and the procedures for handling complaints and competences of the parties involved are clear. You must always consider the following:
The complaints department has a central role, which is why it is mandatory for every company to have one. Its main task is to investigate and examine the situation following a complaint. In addition, it can also take on further tasks, such as providing information or evaluating the complaint procedure. However, it is not a counselling office, which would have the task of taking sides with and supporting those affected. Rather, within the complaints procedure, the complaints department takes over employer functions and must act objectively.
As an employer, you can appoint a specific person to the counselling office or set up your own office. Various different organisational constellations are possible here. The counselling office may be set up in the personnel department, with the works council or, if that proves to be difficult – externally, for example with an umbrella organisation at supra-company level. What is important is for competence to be established separately from company management.
It is very important to have a clear complaints procedure for dealing with cases of sexual harassment. A case of complaint is a stressful situation for all concerned. Unfortunately, time and again this leads to mistakes in dealing with matters of a confidential nature and in the decision-making process. That is why the procedures should be clear to all concerned, particularly employees. The procedure should clearly specify the first steps to be taken in the case of a complaint, which players are involved, when personnel meetings are to be held, and how decisions on protective measures and sanctions are to be taken.