At the beginning of this year, the Golden Globes awards ceremony took place in the US. Rather than for its list of winners, this year's Golden Globes will be remembered mainly as a physical manifestation of the #TimesUp movement, with almost all Hollywood stars wearing black on the red carpet to take a stance against sexual harassment.
The topic of sexual harassment is omnipresent, and it is as relevant to a Hollywood movie set, as it is to any company of any size. We believe it is, therefore, worthwhile to examine the legal issues relating to this topic.
What is the definition of sexual harassment?
The General Act on Equal Treatment (AGG) defines sexual harassment as
- unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images,
- taking place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment.
Duty of care of the employer
Under Article 12 AGG, the employer has the duty of care to protect employees against sexual harassment. This duty of care includes both preventive measures and also repressive measures following an incident to ensure that employees are protected going forward. Every employer is, therefore, required to set up a reporting point for complaints for affected employees. In addition, employers are obliged to inform their employees about the content of the AGG. In this context, it makes sense for employers to offer AGG training to employees.
Employee rights in sexual harassment cases
Any employees affected by sexual harassment have the right to turn to the relevant reporting point for complaints.
Where the employer fails to act or takes obviously unsuitable measures, the affected employees shall have the right to refuse performance without loss of pay insofar as this is necessary for their protection.
Under Article 15 AGG, employees affected by sexual harassment may also be entitled to claim compensation (compensation for pain and suffering) or damages (e.g. therapy costs incurred as a result of sexual harassment) from their employer. In sexual harassment cases involving senior employees with managerial responsibilities, liability is frequently attributed to the employer. In sexual harassment cases involving other employees, the liability of the employer may arise in particular if the employer has failed in their duty of care (Article 12 AGG).
Disciplinary action in harassment cases
Where employees violate the prohibition of sexual harassment, the employer shall take suitable, necessary and appropriate action in the given case. This may include cautioning, warning, moving, relocating or dismissing the employee in question.
The case law on this topic shows that sexual harassment-related dismissals often fail in the lower courts because there was no prior warning. In a controversial decision in an unlawful termination case, which sparked considerable media attention, the German Federal Labor Court ruled (judgment of 20.11.2014 - Ref. 2 AZR 651/13) in favor of a car mechanic, who groped a cleaning lady's breast on the grounds that a warning should have sufficed as this was a one-off incident with no risk of being repeated. The incident – taking into account all the circumstances of the individual case – was classified as a »moment of madness«.
Naturally, there are also cases in which a warning before termination is superfluous, for example, where a change of behavior even after a warning cannot be expected or in cases of grave breaches of duty, which are by objective standards unacceptable from the employer's point of view and recognizable as such from the employee's perspective.
Employers should take their duty of care to employees seriously. It is up to employers to make sure through information and preventative measures that employees have a basic understanding that sexual harassment will not be tolerated under any circumstances.
Nevertheless, if an incident occurs, it is important to consider carefully the suitable and proportionate course of action. If the facts do not justify a dismissal because the incident was of a minor and/or one-off nature, the employee concerned should at least be cautioned to ensure that the harassing behavior of the employee is not repeated and to be warned that if the behavior is repeated, this will constitute grounds for dismissal.