Written by Kalia Klein
The ‘Prevention of Sexual Harassment Law (5758-1998)’ was enacted in 1998 with the primary goal of safeguarding the individual’s freedom, dignity, and privacy, and furthering gender equality. This statute proscribes a range of actions which constitute Sexual Harassment, encompassing:
- Blackmailing someone into performing a sexual act;
- An indecent act (one act is sufficient);
- Repeated overtures of sexual nature;
- Repeated references to a person’s sexuality;
- Making disparaging references to a person’s sex, gender, or sexuality, including their sexual orientation;
- Exploiting a hierarchical or authoritative role for sexual purposes;
- Executing acts with the intent of sexual gratification or debasement without consent;
- Disseminating photographs, recordings, or videos that focus on a person’s sexuality in situations that may lead to humiliation or degradation, without their consent.
The statute confers upon the employer the following duties: (a) to ensure a workplace devoid of sexual harassment, (b) to apprise employees of the prohibition of sexual harassment, and (c) to effectively address instances of harassment.
In pursuance of these responsibilities, the statute mandates employers to undertake the following actions:
- Employers with a staff of over 25 employees are required to adopt a prevention of sexual harassment policy. This policy must be aligned with the model rules stipulated in the law.
- Employers are obligated to disseminate their policy to employees and display it publicly, along with all regulations related to the prevention of sexual harassment.
- Employers must appoint a designated individual to oversee the enforcement of sexual harassment prevention within the workplace. This designated supervisor is vested with the authority to investigate sexual harassment complaints within the workplace. The statute expresses a preference for women to occupy this role.
- Employers are required to formulate effective mechanisms for receiving sexual harassment complaints and conducting investigations of such complaints.
- While the statute does not explicitly mandate employers to conduct training for employees in the prevention of sexual harassment, case law suggests that the absence of training could signify a failure to fulfill the employer’s legal obligation to provide a harassment-free workplace. Consequently, conducting regular training sessions across all workplaces is strongly advisable.
An employer who fulfils all the stipulated legal obligations is absolved of legal liability for the occurrence of a sexual harassment perpetrated by an employee. This approach is designed to motivate employers to promptly address complaints of sexual harassment, thus potentially protecting them from legal repercussions.
Employers must clearly demonstrate that they have taken all requisite measures to prevent sexual harassment within the workplace. Non-compliance with the aforementioned requirements exposes employers to potential civil lawsuits brought by aggrieved employees, in addition to the risk of fines and criminal charges brought by labour law enforcement agencies.
The actions and investigations carried out by the designated supervisor are subject to meticulous scrutiny by the courts. Inadequate handling of investigations of sexual harassment may expose the employer to litigation and legal proceedings and allegations of violating the law and promoting such inappropriate conduct of sexual harassment.
The handling of investigations into sexual harassment claims by the supervisor must be undertaken with sensitivity, efficiency, and due respect for the dignity and privacy of all parties involved. Comprehensive documentation, including investigation protocols and witness testimonies must be generated by the supervisor. Should supporting (or refuting) evidence be available, such as recordings, messages, security camera footage, or employee statements, swift collection and preservation are imperative to avert evidence loss. In certain instances, entrusting the investigation to an external expert, such as a former judge, may be advisable to ensure impartiality.
Given that sexual harassment claims may prompt police investigations as criminal proceedings, and owing to the sensitive nature of such cases, the labour court will scrutinise investigations and evidence, demanding irrefutable proof prior to adjudicating claims of sexual harassment.
In the preceding year, our employment department handled a sensitive case (Case No. 26461-05-18), involving a former senior employee dismissed due to sustained sexual harassment directed towards colleagues, encompassing intrusive inquiries, physical contact, and disparaging references with respect to sexuality and sexual orientation.
Following his termination, the former employee initiated legal proceedings alleging wrongful termination based on age and physical disability, while denying any involvement in harassment.
The sexual harassment investigation in this instance was conducted by an internal employee without legal accompaniment.
As part of his legal proceedings, the former employee contested the supervisor’s investigation, alleging an unfair investigative process. Specific contentions included: (a) a conflict of interest on the part of the supervisor due to a business association with the spouse, (b) insufficiently detailed protocols, (c) failure to interview all pertinent witnesses and discrepancies in testimonies, (d) the supervisor’s failure to apprise witnesses of the investigation’s nature and the posing of irrelevant questions, (e) the investigation’s continuance despite the absence of a complaint from the directly affected party.
However, since the court was presented with security camera footage depicting the former employee engaging in the harassment activities attributed to him, it determined as a factual matter that the former employee’s dismissal was directly precipitated by his sexual harassment, as opposed to age or disability discrimination as claimed.
The Regional Labour Court’s judgment criticised the employer for the manner in which the investigation was conducted. It is evident that if a clear evidence did not emerge due to the security camera footage confirming the alleged sexual harassment, the former employee might have succeeded in his claim of wrongful termination, and our client’s claim of termination due to sexual harassment behaviour could have been dismissed, due to unprofessional investigation without legal guidance during the performance of the sensitive investigation of sexual harassment
In conclusion, this case underscores the critical importance for employers to meticulously adhere to proper procedures when investigating and addressing complaints of sexual harassment within the workplace. This necessitates conducting well-structured investigations, implementing suitable protocols, exhaustively examining pertinent evidence, and ensuring the preservation of material documentation. This case also exemplifies the significance of seeking professional legal consultation pertaining to investigative procedures in such sensitive cases, and the formulation of comprehensive termination agreements to safeguard employers against potential future claims.
