Background
Facts
Decision
Comment
In two recent decisions the Supreme Court clarified employer liability for harassment perpetrated by employees.
Background
Under the Equal Protection Act, sexual harassment is considered one aspect of sex-based discrimination and is therefore prohibited. Under Section 6 of the act, discrimination based on sex occurs if a person:
- is sexually harassed by his or her actual employer;
- is discriminated against by his or her employer in such a way that the employer fails to take appropriate remedial action - based on legislation, the standards of collective labour law or the employment contract - in the event of harassment by a third party;
- is harassed by a third party in a context of his or her employment relationship; or
- is harassed by a third party outside of the employment relationship.
Under the act, 'sexual harassment' is defined as conduct of a sexual nature:
- where such conduct affects a person's dignity and is unwanted by, inappropriate to or offensive to the affected person and creates an intimidating, hostile or humiliating working environment;
- where the affected person refutes or tolerates sex-based conduct on the part of the employer or superiors or colleagues, and this forms the basis - either overtly or tacitly - for a decision that affects that person's access to vocational training, employment, further employment, promotion or payment, or forms the basis for another decision made in the working environment; or
- where a third person is incited to sexually harass an employee.
It is thus clear that an employer is liable for harassment that it perpetrates itself. It also follows from the act that discrimination also occurs if the employer is not the actual harasser, but fails to take appropriate remedial action to protect the harassed person from further harassment and thus breaches its duty of care as an employer.
In a recent decision(1) the Supreme Court clarified that certain third parties might have such a relationship to the victim that they actually qualify as an 'employer' within the purview of the act. As a consequence, the actual employer is directly liable for harassment by those third parties, even though it cannot be shown that the actual employer failed to take appropriate remedial action to protect the victim from further harassment.
Facts
A new hire's superior sent an email message to eight male co-workers reading: "We have a new service technician; odds are that our service businesses will now skyrocket." Attached to the email message was a video file showing a service technician scantily clad in a short dress and suspenders, fumbling about with a male co-worker under his desk and apparently engaged in sexual activity.
Decision
Referring to an earlier decision handed down in 2008,(2) the Supreme Court stated that the legal representative of an employer-entity will also qualify as an 'employer' within the meaning of the act, and that the employer-entity will be directly liable where the legal representative (eg, the chief executive officer or managing director) perpetrated an act of sexual harassment. In that earlier decision the Supreme Court also ruled that the employer-entity will become vicariously liable if it is not the entity itself or its legal representative that was negligent, but if instead the employees who failed to take appropriate remedial action were entrusted with an employer-like duty of care (eg, managerial personnel).
In 2008 the court left unresolved the issue whether of an employer's behaviour can be qualified as as sexual harassment where the harassment is not perpetrated by the actual employer or, in the case of an employer-entity, where the actual harasser is not a legal representative of the employer-entity, but merely a superior. In its most recent decision, the court further clarified this issue, as well as supporting its rationale by an analogy to the Employee Act and ruling that the term 'employer' includes not only the actual employer or the legal representative(s) of an employer-entity, but also those persons who are entrusted with employer-like powers.
Comment
The decision demonstrates that sexual harassment by the employer can also be perpetrated by the victim's superior. In such case the employer will be (vicariously) liable even where the harassment was the first such conduct of its kind and it cannot be shown that the employer failed to take appropriate remedial action against future harassment.
For further information on this topic please contact Jakob Widner at Graf & Pitkowitz Rechtsanwälte GmbH by telephone (+431 401 17 0), fax (+431 401 17 40) or email ([email protected]).
Endnotes
(1) OGH December 21 2011, 9 ObA 118/11k.
(2) 9 ObA 18/08x.