Nearly 4 years ago, actress Alyssa Milano tweeted "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet" and replied herself with "Me too." She thus set in motion the #MeToo movement against sexual harassment and sexual assault (especially in the work environment), which continues unabated to this day. Initially related only to the entertainment industry, other sectors were gradually covered.

 

Even today, sexual harassment in the workplace is unfortunately still nothing unusual. In addition to the (obvious) negative effects on those personally affected, the disclosure of cases of sexual harassment can also have a significant impact on the company (e.g. in the form of negative publicity). All the more important is

  • a professional approach by the employer to those involved,

  • knowledge of the employer's (protective) duties in this context, and

  • awareness of the risks that may arise in the event of extraordinary termination without notice or the taking of inadequate measures.

 

A ruling by the Federal Labor Court (BAG) of May 20, 2021, once again shows how thin the line between finding and rejecting an asserted sexual harassment can be in the opinion of the courts - and why employers are well advised to always consider the individual case.

 

 

On the BAG decision

The defendant employer produces automobiles. During a night shift in May 2019, the employee (who later filed the lawsuit) abruptly pulled down the work pants and underwear of another employee with both hands, so that the latter stood in the tract with his genital area exposed for several seconds. The employee was exposed to the looks (and the laughter) of his colleagues. The employer terminated the employment relationship of the "perpetrator" without notice for good cause.

 

 

The BAG ruled that the plaintiff's conduct was "in itself" suitable to justify the extraordinary termination without notice. This was because it was both a

  • breach of the duty to show consideration for the interests of the defendant employer as well as

  • violation of the general personal rights of the "exposed" employee

In addition, employers are obliged to protect their (temporary) employees from sexual harassment.

 

 

In the opinion of the BAG, it may also have been sexual harassment within the meaning of the General Equal Treatment Act (AGG) if the plaintiff had actually intended to pull down his colleague's underpants as well. However, this question was left open, as the Saxon State Labor Court in the lower instance had not sufficiently determined the facts of the case in this respect.

 

Sexual harassment occurs when unwanted, sexually explicit behavior (including sexually explicit physical touching and remarks of a sexual nature) has the purpose or effect of violating the dignity of the person concerned. Even one-off sexually explicit behavior can constitute sexual harassment. With reference to the case described, the BAG ruled as follows:

 

  • The purposeful touching of the primary or secondary sexual characteristics of another person is a sexually determined physical touching, which - in the case of objectively recognizable undesirability - constitutes sexual harassment. It is an assault directed at the physical intimate sphere.

  • According to the decision of the BAG, a sexual assault also exists if the genitals of another person are not touched, but are intentionally exposed (in disregard of the right to sexual self-determination, to whom and in which situation the person would like to show him/herself unclothed). In the case of such assaults, the mere occurrence of the harassment is sufficient to constitute "effecting" of the violation of the affected person’s dignity.

 

What should employers now consider in practice?

 

Practical tip 1: No definition of reasons for termination

Even if the motives for pursuing a so-called "zero tolerance" policy are understandable, employers should be aware that defining grounds that in all circumstances justify a termination is not provided for in German labor law. Therefore, sexual harassment cannot be defined in advance as a reason for (extraordinary) termination without notice. Clauses in an employment contract or even a so-called "Code of Conduct" that define such grounds for termination are not binding for German labor courts.

 

Instead, a breach of duty (including in the form of sexual harassment) must always be examined on a case-by-case basis to determine whether the specific conduct "in itself" is suitable as grounds for extraordinary termination without notice within the meaning of Section 626 (1) of the German Civil Code. In a second step, the employee's interests in continuing the employment and the employer's interests in terminating the employment relationship must be weighed against each other. Here it must be checked whether a milder reaction than termination without notice (e.g. a warning, reassignment or termination with notice) is also reasonable

 

Practical tip 2: Change in case law? - Always consider the individual case!

After 4 years of #MeToo, not only society seems to be more sensitive to the issue of sexual harassment. The jurisprudence of the labor courts also increasingly shows - at least in parts - a sensitization for the topic. On the other hand, other decisions of the labor courts continue to cause only head-shaking. Whether an intended termination following sexual harassment will stand up to judicial scrutiny can therefore hardly be predicted in a general and legally secure manner. The individual prospects of success should always be reviewed on a case-by-case basis and taken into account in the decision-making process.

 

Practical tip 3: Employer prevention / duties to protect

Employers are legally obligated to protect their (temporary) employees preventively(!) against sexual harassment and to prevent (renewed) sexual harassment. In the context of a first-time harassment, employers can generally not be held liable, since it will not be possible to attribute the behavior of the harassing person to the employer. After such a "first offense", however, the employer's own obligations are established: Measures must be taken that are suitable, necessary and appropriate to prevent sexual harassment (Section 12 AGG). If sexual harassment occurs again after a first violation and no measures were taken by the employer to stop it (or if they were not sufficient), the harassed person can claim (substantial) damages and compensation from the employer. In order to avoid this, employees should not only receive regular (preventive) training, but it is also essential to handle allegations of sexual harassment carefully and professionally.

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