In recent months, words and concepts such as sexual harassment, MeToo, sexism and the like have featured prominently in the media. A growing number of women have come forward and described many different actions, which they have each perceived as intrusive and offensive. At the same time, current awareness of the subject means that Danish employers are increasingly beginning to consider how to act if an accusation of sexual harassment suddenly appears within the four walls of their company. Is this covered in the employee manual? Has a company policy been formulated? How can the situation best be handled?
At Azets, we advise companies on HR law and employee relations every day – including on difficult issues such as sexual harassment. The aim of this article is to provide you with answers to the most common questions about sexual harassment from an employer’s perspective.
What is sexual harassment?
Sexual harassment can generally be defined as offensive and unwanted acts of a sexual nature, expressed through verbal, physical or non-verbal behaviour.
- Physical sexual harassment: kisses, touches, etc.
- Verbal sexual harassment: questions of a sexual nature, vulgar comments, etc.
- Non-verbal sexual harassment: displays of pornographic material, images of sexual content, etc.
However, the above actions are only considered sexual harassment when they are perceived as offensive by the recipient. Culture, traditions and manners vary from workplace to workplace and from team to team. What might be perceived as innocent flirtation by some might be perceived as deeply offensive by others. Therefore, it is difficult to draw a line that can easily be applied to all workplaces in Denmark.
In other words, the victim's assessment of the sexual approach as welcome or unwanted is decisive, not the perpetrator's perception. This also appears in 'A good mental working environment – prevent sexual harassment', which has been prepared by the social partners and the Danish Working Environment Authority jointly.
What are the legal regulations?
Section 1(6) of the Equal Treatment Act and Section 2a (3) of the Gender Equality Act state:
"Sexual harassment exists when any unwanted verbal, non-verbal or physical behaviour with sexual undertones is exhibited for the purpose or effect of violating a person's dignity, in particular by creating a threatening, hostile, degrading, humiliating or unpleasant climate.”
Sexual harassment is illegal and is processed based on different laws, depending on its nature and the situation:
- The Equal Treatment Act: sexual harassment in the labour market.
- The Gender Equality Act: sexual harassment in the rest of society.
- The Working Environment Act: The Danish Working Environment Authority supervises the area in cases where the workplace does not have a collective agreement covering this area.
- The Penal Code: sexual harassment of a particularly serious nature, which in some cases is equated with an offence against decency or rape. Cases like these should be reported to the police.
Generally, all companies in Denmark have a duty to ensure a harassment-free environment and to prevent their employees from being subjected to harassment. If an employer has not taken sufficient care to ensure this, they may incur liability.
The Danish Working Environment Authority's executive order no. 1234 on the performance of work states the following:
- 7. At all levels, work must be carried out in a sound manner in terms of safety and health, based on both an individual and overall assessment of the physical, ergonomic and psychosocial conditions in the working environment which, in the short or long term, may impact physical or mental health.
- 9a. When performing work, it must be ensured that the work does not entail a risk of degradation of physical or mental health as a result of bullying, including sexual harassment.
Is it relevant whether the offender is a manager or a colleague?
Yes, it is. If an employee is subjected to sexual harassment by a colleague, he/she can claim compensation from the offender under the Liability Act. In this situation, compensation can only be demanded from the company under the Equal Treatment Act if the company has been convicted as co-responsible.
If, on the other hand, the offender is a manager, this is considered an aggravating circumstance. The reason is that sexual harassment in this situation is considered to be an exploitation of the manager's position of power. In this situation, there is a so-called legal identification between the manager and the company, and the offended party can claim compensation under both the Liability Act (from the manager) and the Equal Treatment Act (from the company).
Although it is possible to process cases of sexual harassment at the Equal Treatment Board, they often end up in the courts, as here it is possible to present party explanations and call witnesses (as opposed to what applies before the Equal Treatment Board).
What can/should you do as an employer?
Sexual harassment can occur in any business, large or small. A first step in dealing with the situation professionally and credibly is that, as an employer, you must take a stand on the issue before it arises. If, as an employer, you want to actively counteract sexual harassment, this requires clear and visible values which are partly formulated in the formal guidelines (staff policy and employee manual) and partly expressed through actions in everyday life.
Managers at the company have a particular responsibility, so it is important that they are equipped to be able to answer questions and handle incidents effectively.
What you can/should do as an employer:
- Support a respectful tone in conversation.
- Emphasise good co-operation.
- Ensure that a staff policy is drawn up with a declaration of intent, procedures and options for action.
- Make it clear that you do not tolerate bullying and sexual harassment.
- Make it clear where people who are victims of bullying and sexual harassment – and supportive colleagues – can go to register the situation.
- Respond immediately if bullying or sexual harassment occur.
- Offer help and support to those who are being bullied and harassed.
- Find the underlying causes of the bullying and harassment and learn from them. Previously unresolved conflicts, lack of alignment of expectations, lack of skills in connection with the solution of a specific task, hurtful remarks, etc. could be reasons.
- Involve the working environment organisation in the preventative work, or if employees express that bullying or sexual harassment has taken place.
- Conflict management Unresolved conflicts can develop into bullying. Therefore, equip managers and employees to handle conflicts respectfully and professionally.
- Keep a sustained focus on having a good mental working environment.
- Work with mutual trust and collaborative relationships.
Offering targeted courses for management and certain employees to help ensure that more people in the company have the necessary knowledge to deal with sexual harassment appropriately could also be an option.
If you need help or advice regarding sexual harassment, our HR legal employees can answer questions and help you make the right and necessary decisions. This applies whether you have urgent problems or you want assistance in preventing sexual harassment, e.g. by updating or drafting a staff policy in this area.
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