Sexual harassment accusations, catalysed by the #MeToo movement, almost always involve complaints against a particular person. However, very often the name of an organisation is attached to that person: “the manager of X company” or “a professor at Y university”. As a result, the organization related to that person often finds itself in the midst of a scandal. A good example of this situation is sexual assault accusations by alumni of the Vilnius Academy of Art against professors. These accusations not only cast a shadow over the academy’s reputation, but can also have a significant impact upon prospective students’ decision to enrol. Any employer may find itself in a similar situation.
Can an employer be liable for sexual harassment in the workplace or at work-related events such as a company party? The short answer is: ‘yes’. Under the new Lithuanian labour code (the Labour Code), employers must take measures to ensure that employees do not experience any form of harassment, including sexual harassment, and that nobody is told to discriminate. The Labour Code states that an employee who has complained about discrimination or is involved in a discrimination-related case must not be persecuted and must be protected against hostile behaviour and negative consequences. The Labour Code does not state directly that it is the employer’s duty to ensure that employees do not experience sexual harassment at work-related events organised by the company. However, considering that sexual harassment most often happens at work-related events, employers must take measures to prevent it.
The worst approach to sexual harassment is to ignore the problem and expect it to resolve itself. This can not only negatively affect a company’s reputation but may also have serious legal consequences. The risk is that an employee who experienced sexual harassment can take legal action not only against the harasser but also against the employer.
Why is implementing equal opportunities policy so important?
The Labour Code applicable as of 1 July 2017 states that every company with over 50 employees must adopt and announce principles for supervising and implementing an equal opportunities policy. Note that a policy declaring equal opportunities is not enough: a company must also introduce measures to secure equal opportunities. This means that the company must introduce methods that will be applied in particular situations or as a preventive tool.
This arrangement for implementing equal opportunities policy performs four main functions:
- Ensures active company involvement in protecting employees against harassment.
- A company accused of providing a detrimental working environment by an employee who experiences sexual harassment has a chance to prove that it has taken necessary measures to protect employees.
- The company avoids sanctions by the state labour inspectorate for failure to comply with the law (for failing to adopt compulsory internal documents).
- The company can prove that it has taken necessary measures to prevent harassment and so protect its reputation.
Organizations must educate employees and inform them about zero tolerance of sexual harassment and the consequences of such behaviour. Experience shows that when measures are taken against harassers, they often use the excuse that they did not understand that the victim did not want their attention and that their flirting was falsely interpreted as harassment. If an organization can prove that it has informed employees that this kind of behaviour will not be tolerated, these arguments can be disproved.
Immediate response is essential
When the management of a company suspects or discovers sexual harassment, it must react immediately and start investigating. A rapid reaction often prevents further harassment and protects the victim (or victims) and helps maintain the company’s reputation.
Liability of employees reported for harassment
Employers must protect victims’ interests and introduce liability to the harasser. Very few companies are aware that the Labour Code treats sexual harassment as a gross violation of work responsibilities, allowing dismissal of employees found to be at fault without notice or severance payment. This practice is also well established in Latvia and Estonia, where strict sanctions are imposed on employees for sexual harassment in the workplace.