A recent district court ruling demonstrates that an employer can be liable for a customer's sexual harassment towards an employee. The ruling shows that employers must work actively to prevent sexual harassment, both in general and in specific matters where sexual harassment has occurred.
The Discrimination Act prohibits sexual harassment, which is regarded as unwanted sexual attention that has the purpose or effect of being (among other things) offensive, degrading and humiliating. Employers should practise zero tolerance concerning sexual harassment as they have a duty to both prevent and stop sexual harassment. The duty to prevent sexual harassment may include creating awareness campaigns, guidelines and notification procedures. An employer's size and its previous experience with sexual harassment situations may influence the extent of such measures. The duty to stop sexual harassment normally includes:
- acting in situations where sexual harassment may have occurred;
- investigating claims of sexual harassment; and
- discussing and instituting measures to deal with and combat sexual harassment.
Employers must document that they have tried to stop sexual harassment. Traditionally, an employer's duty to prevent and stop sexual harassment has included only sexual harassment between employees. The question of sexual harassment from a customer has not been questioned before.
In the matter before the district court, a female mechanic worked as the only female mechanic in a workshop. The court found that she had been exposed to sexual harassment as she had been tickled and touched by a customer while working on the employer's premises. She did not want such attention and had found it to be of a sexual character. The matter was followed up by two different CEOs, one succeeding the other. The first CEO had initiated measures, including:
- discussing the matter with the employee;
- expelling the relevant customers from the employer's premises; and
- giving the employee administrative work tasks so that she did not have to be in the workshop when she was at work.
The second CEO ordered the female mechanic back to the workshop and did not follow up on the issues concerning sexual harassment.
The district court found that the customer's touching and tickling of the female mechanic was considered sexual harassment because it was unwanted attention which she had found to be of a sexual character. On this basis, the court held both the customer and the employer liable for economic and non-economic damages to the female mechanic.
Regarding the employer's liability, the court emphasised that the employer had allowed the customers to move freely in the workshop and oversee their employees' work, and therefore could be held responsible for a customer's behaviour in the workshop. Further, the court highlighted that the first CEO had acted and initiated measures to try to stop and prevent the sexual harassment, but that the second CEO had not. Instead, he had admitted that he had found the situation uncomfortable, which the court found to be a problem with attitude. Further, the court emphasised that even though the employer was a small company, it had no guidelines concerning sexual harassment. Despite the fact that the employer had not previously experienced sexual harassment matters and had a satisfactory working environment where the employees normally could discuss issues with their closest manager or the safety representative, the court found that the employer had not shown that it had made an effort to fulfil its duty to prevent sexual harassment.
The judgment illustrates the efforts that even small companies must make to prevent and stop sexual harassment in the workplace. As a minimum, employers should:
- perform a risk analysis of and have a zero-tolerance approach to sexual harassment;
- have guidelines on sexual harassment matters; and
- immediately address sexual harassment situations if they occur.
In this case, the fact that the employer allowed customers in the workshop was emphasised by the court; however, it appears uncertain whether this will be a significant aspect in future cases.
There has been an increased focus on preventing sexual harassment in the workplace in Norway, as demonstrated in the recent amendments in the Discrimination Act, which will come into force on 1 January 2020 (for further details please see "Recent labour law amendments"). In addition to increasing the authority of the Anti-discrimination Tribunal, the amendments emphasise employers' duty to prevent and stop sexual harassment. Employers must also issue statements on the current state of affairs in regard to discrimination and sexual harassment in their workplace.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.