Challenges and Roles in Addressing Harassment and Sexual Harassment at Work

HARASSMENT AND SEXUAL HARASSMENT AT WORK:CHALLENGES AND POSSIBLE ROLES FOR EQUALITY BODIES Senior Investigator Maria Karageorgou Greek Ombudsman Equinet High Level Legal Seminar on Gender Equality Gender Equality in the Labour Market: The Role of Equality Bodies Brussels, 27.07.2013

Why You Shouldn't Report Sexual HarassmentCBS NewsBy Penelope Trunk / MoneyWatch/ May 23, 2011, 1:02 PM • […] Of course, sexual harassment is ubiquitous. It is so prevalent on the job that girls can expect to encounter workplace harassment the first summer they work during high school. And it continues for a long time. • Just because you identify it, though, doesn't mean you should report it. In fact, smart women don't file formal complaints against harassment. They either ignore it or handle it on their own. http://www.cbsnews.com/8301-505125_162-45040445/why-you-shouldnt-report-sexual-harassment/

SH:Gender-based discrimination • According to the International Labour Organisation (ILO), sexual harassment is a clear form of discrimination based on sex, a manifestation of unequal power relations between men and women. • Statistics show that, as women raise in power, reports of men being sexually harassed by women, also increase. • Therefore, it is essential for all of us to understand that SH is not about sexual desire, it is about control and domination

Problems faced by EB • The definition itself: ‘sexual harassment’: where any form of unwanted verbal,non-verbal or physical conduct of a sexual nature occurs,with the purpose or effect of violating the dignity of aperson, in particular when creating an intimidating, hostile,degrading, humiliating or offensive environment; • Full of ambiguous terms subject to personal interpretation as well as legal construction: unwanted, purpose or effect, violation of dignity

Questions • Must the fact that the conduct is “unwanted” have been explicitly declared to the alleged harasser? • Can compliments and “positive” remarks about a person (i.e. “you look gorgeous today”) be considered as harassment? • Can general remarks/jokes about gender,made on a steady basis by individuals in the workplace, be basis for complaint by a certain individual of that gender? (i.e. jokes about blondes)

Problems II:Under-reporting • The vast number of sexual harassment situations go unreported, mainly for personal and social reasons (fear of retaliation, libel suits etc), but EB also share some responsibility: • The role of EB in H/SH is not known to the public • EB lack the experience and the tools to handle such cases • EB lack the mandate to impose sanctions

Problems III: Evidence • Victims do not know how to build a case of H/SH (keep record, accumulate evidence) • In most cases, there is no reliable evidence (if any) • Evidence admissibility (recordings, text messages): no guide for EB • Witnesses: If there are, they are afraid to come forward, because their jobs are on the line

Problems IV: Shift of the burden of proof • “When persons who consider themselves wronged because theprinciple of equal treatment has not been applied to them, establish, before a court or other competent authority, facts fromwhich it may be presumed that there has been direct or indirectdiscrimination, it shall be for the respondent to prove that therehas been no breach of the principle of equal treatment.”(2006/54/EU, art. 19) • The claimant is required to ‘establish facts’ from which a presumption of discrimination arises: This can be easier in cases of discrimination, such as, i.e. equal pay, where facts can be established, or at least presumed, through statistics. How does this apply to H/SH? • In Court, the provision must be implemented in accordance with the Member State’s national judicial system. This implies that the circumstances, under which the burden of proof is shifted, may vary according to the legal norms in the Member States and therefore the way in which the provision on shifting the burden of proof is applied be different from country to country. • Can EB have a common tool in order to implement this principle? • Can EB exchange “best practices” in this field?

Problems IV: Sanctions • Even victims that can substantiate their allegations have to go to Court for protection and compensation • Most EB do not have the mandate to offer judicial support to the victims or take a case to court by themselves • They can simply draft a Findings Report, which the victim can submit to Court for consideration

Example from the GO experience • A woman responded to a classified advertisement on line for the post of personal secretary: The prospective employer answered that, since he was paying a lot of money (2500 EUR) he wanted not only a secretary but also a sexual partner, therefore the girl should also send full body pictures; the woman leaked this story on line anonymously;

continued • The complainant did not want to file an official complaint with the police or come to the GO. We verified the existence of the classified ad on line, but could do nothing further because in order for the police to conduct an official search for the domain hosting the ad, there should be an official investigation by the Public Prosecutor, which could not be done without the woman’s complaint.

So, what can EB do? • 2006/54/EU Recital 6 Harassment and sexual harassment are contrary to theprinciple of equal treatment between men and women andconstitute discrimination on grounds of sex for thepurposes of this Directive. These forms of discriminationoccur not only in the workplace, but also in the context ofaccess to employment, vocational training and promotion. They should therefore be prohibited and should be subjectto effective, proportionate and dissuasive penalties.

Recital 7 • In this context, employers and those responsible forvocational training should be encouraged to take measuresto combat all forms of discrimination on grounds of sexand, in particular, to take preventive measures againstharassment and sexual harassment in the workplace and inaccess to employment, vocational training and promotion,in accordance with national law and practice

In individual cases EB could: • Offer legal and emotional support to the victims • Act as mediator between alleged “harasser” and “victim” for the purpose of finding an extra-judicial solution • Intervene with the employer for the purpose of restoring peace in the workplace

Sanctions through Labour Inspectors • The GO has an institutional collaboration with the Labour Inspectors in cases of breach of the provisions of 2006/54/EU • All such complaints to the LI have to be referred to the GO • The GO participates in the reconciliatory meetings between employer and employee before the LI • In case reconciliation attempts fail, the GO drafts a Findings Report at the end of the procedure, where we are allowed to propose the imposition of pecuniary penalty to the employer, if found guilty • The LI have discretionary power to consider our proposal, but have imposed fines in several cases (mainly maternity protection)

In the public sphere, EB could: • Raise awareness and sensitivity among the public about H/SH • Collaborate with both public and private employers, unions and civil society organisations in order to promote a harassment-free workplace • Enforce employers to undertake written, specific anti-harassment policies at the workplace • Advocate for effective, proportionate and dissuasive penalties not only to harassers, but also to employers without strict anti-harassment policies

Proposals to Equinet • Training of EB staff working on H/SH: • Discovering our own bias (experiential workshop by trainer professionals) • Training on mediation • Proposal to the Commission: • Increased power of the Findings Reports of the EB, when presented in courts (full evidence and not merely for consideration)

Top things to do if you are a victim of workplace sexual harassment • Do NOT ignore the harassment • Make it clear to the harasser that the conduct is UNWELCOME • Keep careful notes on what happened, but NOT on employer owned equipment • REPORT the conduct • Do NOT quit your job • Retaliation IS illegal-and sometimes easier to prove than the actual Harassment • Keep doing your job well • Get legal advice from someone who knows about SH law http://www.workharassment.net/index.php/top-10-things-to-do-if-you-are-a-victim-of-workplace-sexual-harassment.html

Thank you all for your attention Maria Karageorgou 00302131306762 karageorgou@synigoros.gr

Challenges and Roles in Addressing Harassment and Sexual Harassment at Work