Cases of Sexual Harassment in the Workplace and Victims’ Rights
Sexual harassment is defined as any undesirable verbal, non-verbal or physical behavior of a sexual nature that affects the sexual dignity of the individual. Sexual harassment in the workplace, where people spend most of their day's hours, can be among colleagues, by an employer to an employee and vice versa or by a superior to an inferior and vice versa. It is even observed during the job search process and not only in the context of an existing employment relationship.
The intense flirting among colleagues may sometimes exceed the limits.
Sexual harassment in Greek law
Sexual harassment falls within the scope of both civil and penal law. According to article 3 of Law 3896/2010, sexual harassment is sex discrimination, which is prohibited. Also, article 337 of the Penal Code expressly defines sexual abuse as a crime, whereas paragraph 6 of the same article states anyone who is sexually harassing by exploiting the work position of the victim shall be liable to imprisonment of up to three years and a pecuniary penalty of at least 1,000 euros. The cases that constitute a crime are lewd gestures or suggestions for lewd acts. These cases have a negative impact on the personality of the person and affect the common sense of decency and morality in the workplace in the field of sexual life and dignity. On the other hand, the infringement of personal rights by the civil law does not require "lewd" gestures and suggestions, but merely states capable of being sexually discriminatory, creating an intimidating climate in the workplace.
Sexual harassment by a colleague
Although in most cases of sexual harassment the victim is the employee, no hierarchical relationship is required for it to occur. When sexual harassment comes from a colleague, a subordinate or an inferior, the employee whom it is being directed towards must immediately inform his employer. By the employer's duty of care and the EU Directive 76/207/EEC the employer must protect workers from any act that constitutes discrimination on the grounds of sex and sexual harassment. This entails taking the necessary measures to protect the employee's moral integrity and dignity, as well as the obligation to refrain from any act or omission which may cause an offense to the worker's personality. If the duty of care is not complied with, the employee is entitled to plead the following: the abusive practice of the managerial right, unilateral aggravated change of working conditions and/or even formal notification of termination of the employment contract by the employer. The employer, as soon as he is informed of sexual harassment occurring between colleagues or by a superior to an inferior or vice versa, has an obligation to invite for discussion either the person who has caused the harassment or both (victim and perpetrator). If this does not work, he must make the necessary changes to remove the consequences and ensure that it will not happen again in the future. Such actions are the transfer of an employee who has harassed or even his dismissal, if necessary, in the light of the principle of proportionality.
The employer may abuse his managerial right to achieve his goal.
Sexual harassment by the employer
The most common cases of sexual harassment are between an employee being harrased by an employer. These cases are more favored by the element of dependence in the employment relationship.
A dismissal for revenge upon avoiding harassment by the employee or witnessing an incident of sexual harassment by an employee is totally void (Thessaloniki Single Member Court of First Instance, Judgment 1936/2015). In any case, the exercise of the right of the employer to terminate the employment contract is subject to the limitations of Article 281 of the Civil Code, that is, to the limits of good faith, the accepted principles of morality and the social and economic purpose of the right (Supreme Court of Greece, Judgment 1655/1999). The termination of the employment contract by the employer, which occurs after the employee's reaction, is void as abusive. At the same time, the unlawful and culpable infringement of the right to protection of the employee’s personality, which occurs in the case of any sexual harassment, constitutes tort/delict and establishes a claim for compensation for non-material damage suffered (Athens Court of Appeal, Judgment 1139/2007).
Also, if the employer does not make redundancy payments, which, as stated above, will be void, sexual harassment may be interpreted as a unilateral aggravated change of work conditions in the sense that working conditions have changed unfavorably. This will make the employment relationship unbearable for the employee. In this regard, it has been decided that personal discussions, especially concerning love relationships, the intention of meetings outside the workplace, as well as questions about sexual experiences and preferences, constitute a manifestation of sexual harassment. The reason is because it causes unpleasant feelings to the employee, reaching up to the sense of intimidating or humiliating climate in the workplace (Thessaloniki Single Member Court of First Instance, Judgment 1936/2005). In such cases, the employee may interpret the behavior of the employer as a unilateral aggravated change of work conditions and leave the job, considering that the contract has been terminated by the employer. Similarly, there was a case in which the employer forced an employee to stay with him at the workplace after the end of her working hours to close the cash registers, while also he was constantly sending her erotic songs (Thessaloniki Court of Appeal, Judgment 957/2001). It should be noted, however, that voluntary resignation due to sexual harassment is not an optimal solution. The employee must know all their choices and follow the most advantageous for himself.
Subordinates may misunderstand the superior's 'teasing' at the workplace.
Sexual harassment of the employer by the employee
A victim of sexual harassment may be, other than the employee, the employer too. However, this case is not so common and has not been addressed by Greek case law. If the employee proceeds to sexual harassment at the expense of the employer, it could be considered a significant reason for the termination of the employment relationship, since conditions that do not allow the business to function properly are created. If the conditions of Article 337 of the Penal Code are met, the employer may dismiss the employee without even paying the statutory redundancy pay after he has filed an accusation.
Rights in the case of sexual harassment
The law offers many possibilities of protection to anyone who suffers sexual harassment especially in the workplace, where there is a relationship of economic dependence.
The rights of the employee - victim of sexual harassment
The employee, who has been sexually harassed, has the following options:
A. If sexual harassment comes from the employer, it might be considered that the employer's managerial prerogative is abusively exercised and hence there is a unilateral aggravated change of work conditions. This aggravated change may be interpreted as a termination of the employment contract by the employer, resulting in a claim for redundancy pay.
B. If sexual harassment comes either from the employer or a superior or colleague, he may consider there is an infringement of the duty of care and therefore unilateral aggravated change with the above consequences.
C. To declare his possible dismissal as void according to Article 9 of Law 3488/2006 on non-discrimination and to take legal action within three months of the invalid dismissal, claiming the past-due earnings and the continuation of the employment relationship. Indeed, according to article 24 of Law 3896/2010, when there is a presumption of infringement of the principle of equal treatment, the burden of proving is reversed with the result that the alleged offender is obliged to prove that the violation has not occurred. In general, however, the burden of proving shall rest on the one who invokes sexual harassment.
D. To consider his dismissal abusive (due to exceeding the limits of managerial right, revenge, infringement of the limits imposed by good faith, etc.) and therefore void.
E. To consider the formal notification of termination of the employment contract as lawful, claiming compensation for dismissal.
F. In any event, an employee may claim compensation for non-pecuniary damage as it is an insult to his personality.
G. To file a complaint about sexual harassment if the conditions of the offense referred to in paragraph 5 of Article 337 of the Penal Code are met.
H. To contact the Ombudsman and the relevant Labor Inspectorate.
Rights of the employer - victim of sexual harassment
An employer who has been sexually harassed may apply the lawful dismissal of the employee for significant reason or dismissal without the obligation to pay compensation, if he first files a complaint about the infringement of his sexual dignity. In any case, he will also have a claim for compensation for non-material damage suffered.
In conclusion, sexual harassment is a recognized phenomenon of social pathogenesis, which is, however, dealt with by the Greek legislator. To achieve the best possible protection for victims of sexual harassment, both the employee and the employer have to be informed and understand the harassment and take advantage of the possibilities afforded by the law. Every employee must know his rights and the limits of a behavior that may offend his personality and sexual dignity, which at the same time is sex discrimination in the workplace. Accordingly, every employer must, within the framework of the duty of care, take all necessary measures to prevent such occurrences and to ensure that they are eliminated and not repeated in the future.
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