MATERIAL Y MÉTODO
4. METODOLOGÍA DEL ESTUDIO
4.2. Análisis estadístico
A. DEFINITIONS AND GENERAL DUTIES 367
1. DEFINITION OF SEXUAL HARASSMENT 367
2. LAWS PROHIBITING SEXUAL HARASSMENT 367
3. DUTIES ON EMPLOYERS 368
B. SEXUAL HARASSMENT POLICIES 368
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 368
5. WHAT THE POLICY MUST CONTAIN 369
6. SUGGESTED POLICY CONTENT 369
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 369
8. MAKING THE POLICY BINDING ON EMPLOYEES 369
9. LIMITS ON THE CONTENT OF THE POLICY 370
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 370
11. EXTERNAL REPORTING REQUIREMENTS 370
C. RECOURSE 370
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 370
13. PROVING A CLAIM 371
14. REMEDIES AND SANCTIONS 371
D. IMPORTANT LESSONS 372
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By: Matthias Oertle and Katrin Stefanicki1
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
Any undesired conduct of a sexual nature or any other improper conduct related to gender that impairs the dignity of women and men at work is considered to be sexual harassment and, thus, discriminatory. The relevant legislation mentions, in particular, threats, the promise of rewards, or the exertion of pressure, to derive sexual benefits as being conduct constituting sexual harassment. Sexist or suggestive remarks or the presentation or public use of pornography is also considered to be sexual harassment.
2. LAWS PROHIBITING SEXUAL HARASSMENT
The Federal Act of 24 March 1995 on Gender Equality (the ‘Gender Equality Act’) covers the enhancement of equal treatment of women and men in the workplace by means of a general prohibition of discrimination based on gender, including a prohibition of sexual harassment. Articles 4 and 5 specifically refer to the definition and legal consequences of sexual harassment in the workplace.
Article 328 of the Code of Obligations of 30 March 1911 (the ‘Code of Obligations’), which was amended following the enactment of the Gender Equality Act, provides the employer with a general obligation to protect the employee’s personality and health and further to ensure that sexual harassment does not occur in the workplace.
Article 6 of the Federal Act of 13 March 1964 on Labour in Industry, Trade and Commerce (the ‘Labour Act’) provides a general obligation on employers to protect employees’ health and personal integrity. The obligation corresponds to a large extent with Article 328 of the Code of Obligations. However, the scope of applicability of the Labour Act is more limited.
Article 187 of the Swiss Criminal Code of 21 December 1937 covers acts against sexual integrity and Article 198 provides that any person who sexually harasses another person physically or through the use of indecent language
Sexual Harassment Prevention - SWITZERLAND
taken all measures that could be reasonably expected to have taken to prevent the harassment. For this purpose, having a sexual harassment policy is recommended as one of the important measures that can be taken by employers to ensure that employees are aware of the issues.
5. WHAT THE POLICY MUST CONTAIN
There are no specific obligations as to what such a policy must contain.
6. SUGGESTED POLICY CONTENT
A policy on sexual harassment should contain the following elements: • A clear statement from the employer that sexual harassment is not
tolerated.
• A definition and further specification of sexual harassment (including illustrative examples).
• A procedure in case of sexual harassment and an indication of the relevant contact person.
• The range of possible sanctions against perpetrators.
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL
The employee representatives or, if there are none, the employees, must be informed and consulted before the employer enacts the policy but their formal consent to the policy is not required.
8. MAKING THE POLICY BINDING ON EMPLOYEES
In principle, the policy is a unilateral directive issued by the employer and binding on the employees based on the employer’s statutory right to instruct employees on all matters regarding their work and the workplace. However, the employer must ensure that the employees are properly and regularly informed about any preventive measures taken and therefore the fact that a policy exists must be brought to their attention. There are several ways to achieve this for example, by publishing the policy on the intranet. In addition, it is generally advisable to distribute the policy and to let the employees confirm receipt and acknowledgement by countersigning it.
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shall be liable to pay a fine. The relevant criminal procedure is initiated only upon request by the victim.
3. DUTIES ON EMPLOYERS
The employer must take all measures necessary and appropriate in the circumstances to prevent sexual harassment, provided that it is reasonable to expect the employer to take those measures. What measures employers can reasonably be expected to take have been left to the courts as the law does not does not enumerate this. As a rule of thumb, one can say that an employer can reasonably be expected to provide more extensive measures where it has a higher number of employees on its payroll. The following measures are typically taken by employers in order to comply with the law: • A clear statement by means of a policy that sexual harassment is
prohibited, a statement in the employee handbook, on the notice board and/or by way of a written statement distributed to all employees (and countersigned by them). As to the content of such a policy, see section 6 below.
• Comprehensive information and instruction to employees, in particular those with management functions, and the creation of workshops on discrimination as a result of sexual harassment.
• Designation of internal or external persons (of both genders) or a person to whom the employees may refer in case of sexual harassment. The person must be independent and specifically trained, treat complaints confidentially and only take action with the victim’s consent.
• Consistent action if a case of sexual harassment occurs (i.e. escalating from written warning to termination with immediate effect of the wrong-doer) together with advice and support for the victim.
General information for the employees on this topic must be repeated regularly.
B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
In a case of sexual harassment, the victim will have a claim against his or her employer for payment of damages, if the employer fails to prove that it has
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specific conduct as discriminatory, provided the conduct continues to impair the claimant’s position.
Further, the victim may stop working (without terminating the employment contract) if continuing to work would be deemed unreasonable because of the harassing situation and the employer’s failure to remedy it. In this case, the employer is still obliged to continue to pay the employee his or her salary. The Gender Equality Act provides that a notice of termination is voidable if it is given without a justified reason. This protection against dismissal exists for claimants during any discrimination proceedings (i.e. an internal process, mediation or court proceedings) and for six months after the proceedings have ended.
Claims must be brought before the expiry of the notice period.
Alternatively, the claimant may elect to waive his or her protective rights against dismissal and demand compensation for abusive dismissal of up to six months’ salary (based on the actual salary of the affected employee and not the average salary).
13. PROVING A CLAIM
The alleged victim bears the burden of proving the molesting and sexual or degrading conduct by the alleged harasser. If the victim manages to bring proof of the harassing conduct, it is then up to the employer to prove that it has taken all measures necessary to prevent sexual harassment which it could be reasonably expected to take.
14. REMEDIES AND SANCTIONS
Apart from those claims set out in section 12 above, a victim of sexual harassment may claim against his or her employer for payment of damages if it is not able to prove that it has taken all measures necessary to prevent sexual harassment. Damages awarded must not exceed six months’ salary based on the average salary in the respective industry as documented by the Swiss Federal Office of Statistics, collective employment agreements or by other sources.
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9. LIMITS ON THE CONTENT OF THE POLICY
The employer must respect the personality of its employees and any measure taken must be reasonable in scope and in terms of the restrictions it imposes on the employees. Thus, a very broad restriction prohibiting any relationship between fellow employees would not be permitted.
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY
Before taking measures in a specific case, the employer must conduct an investigation to verify the victim’s allegations. This includes allowing the alleged perpetrator to explain his or her position. But given the general rule under Swiss law that an employment contract may be terminated without reason, the employer may give notice of termination at any time.
However, under certain circumstances there could be a risk that termination following an allegation of sexual harassment might be regarded as abusive (retaliatory termination). This could be the case where an employee’s employment is terminated based on allegations that subsequently turn out to be false or if sexual harassment has indeed taken place and the victim was dismissed (instead of, or in addition to, the perpetrator).
It should further be noted that summary dismissal must be justified by circumstances in which the terminating party cannot, in good faith, be expected to continue the employment relationship.
11. EXTERNAL REPORTING REQUIREMENTS
There are no requirements to report cases of sexual harassment to external bodies, except where the harassment amounts to a criminal act.
C. RECOURSE
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT
Employees affected by discrimination through sexual harassment are entitled to claim against the employer for (i) prohibition or restraint of future discrimination; (ii) cessation of an existing discrimination or (iii) recognition of
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D. IMPORTANT LESSONS
15. IMPORTANT LESSONS FROM CASE LAW
Supplying information only once or issuing a sexual harassment policy without taking any further measures is very unlikely to be considered adequate to protect employees from sexual harassment, as required by the Gender Equality Act.
Turkey
A. DEFINITIONS AND GENERAL DUTIES 377
1. DEFINITION OF SEXUAL HARASSMENT 377
2. LAWS PROHIBITING SEXUAL HARASSMENT 377
3. DUTIES ON EMPLOYERS 378
B. SEXUAL HARASSMENT POLICIES 378
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 378
5. WHAT THE POLICY MUST CONTAIN 379
6. SUGGESTED POLICY CONTENT 379
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 379
8. MAKING THE POLICY BINDING ON EMPLOYEES 379
9. LIMITS ON THE CONTENT OF THE POLICY 379
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 379
11. EXTERNAL REPORTING REQUIREMENTS 380
C. RECOURSE 380
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 380
13. PROVING A CLAIM 380
14. REMEDIES AND SANCTIONS 380
D. IMPORTANT LESSONS 381
Sexual Harassment Prevention - TURKEY
By: Maria Celebi and Batuhan Sahmay1
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
Sexual harassment is defined as subjecting a person to sexually explicit offers, jokes and/or insults including all visual, physical and verbal behaviour against the other party’s will.
2. LAWS PROHIBITING SEXUAL HARASSMENT
The laws prohibiting sexual harassment are as follows:
• Article 105 of Turkish Criminal Law No 5237, published in the Official Gazette dated 12 October 2004 (No 5611), provides for criminal sanctions in cases of sexual harassment. According to this article, any person who harasses someone for sexual purposes faces either imprisonment for a term of between three months and two years or an administrative fine. In addition, if these illegal acts have been committed by a person abusing a relationship of trust and confidence (e.g. employer-employee), by abusing family relationships or by taking advantage of an opportunity to work in the same workplace, then the punishment must be increased by half. If, as a consequence of the sexual harassment, the victim quits his or her job or leaves school or home, the offender must be sentenced to imprisonment for not less than one year.
• Article 332 of the Code of Obligations, Law No 818, published in the Official Gazette dated 8 May 1926 (No 366) (note, a new Code of Obligations comes into force on 1 July 2012) deals with the employer’s obligations. Pursuant to this article, an employer is obliged to protect and respect the employees’ rights and manage the workplace according to the principle of honesty. An employer is particularly required to take the steps necessary to prevent employees from being subjected to sexual harassment and bullying and to protect employees who have been sexually harassed from being harmed further. The employer must ensure health and safety at work and must provide the appropriate tools and equipment to protect the health and safety of employees. At the same time employees are obliged
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5. WHAT THE POLICY MUST CONTAIN
There are no specific obligations as to what a sexual harassment policy should contain.
6. SUGGESTED POLICY CONTENT
There are no specific requirements to have a policy, but as a matter of good practice a policy could include:
• provisions regarding training with regards to sexual harassment • who to contact and what actions to take if an employee witnesses or
becomes a victim of sexual harassment • disciplinary procedures.
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL
There is no requirement for participation or consent to the policy by employee representatives and/or the works council.
8. MAKING THE POLICY BINDING ON EMPLOYEES
The policy will be binding upon employees once they sign to confirm that they have read through and understand its terms.
9. LIMITS ON THE CONTENT OF THE POLICY
There are no limits as to what a policy can cover, provided that it is in compliance with legislation.
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY
There are no limits on the action an employer can take under its sexual harassment policy provided that it is in compliance with legislation.
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to follow reasonable standards of behaviour in relation to workplace health and safety. The death, damage to physical integrity and violation of the employee’s rights as a result of the employer’s unlawful behaviour is a breach of Article 322 and the victim is entitled to claim an appropriate remedy (i.e. pecuniary and/or non-pecuniary compensation) under this Article.
• Articles 24 and 25 of Labour Law No 4857, ratified on 22 May 2003 and published in the Official Gazette dated 10 June 2003 (No 25134), cover the right to terminate an employment contract immediately in cases of sexual harassment. This is discussed in further detail in section 14 below.
3. DUTIES ON EMPLOYERS
Employers must take all reasonable measures to ensure health and safety at work, including taking necessary precautions and remedies to prevent or stop cases of sexual harassment. However, existing health and safety regulations, including Labour Law No 4857, do not specifically explain what the necessary precautionary measures and remedies are.
In organisations with 50 or more employees the employer must establish a workplace health and safety committee, but this more typically addresses the prevention of workplace accidents and occupational diseases than sexual harassment.
B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
There is no requirement to have a sexual harassment policy. However, it is recommended that employers should implement such a policy. In Turkey, employees who are subjected to harassment are generally afraid to disclose the existence of the harassment for several reasons, including the threat of termination of their employment contract. If there is a harassment policy which sets up an appointed body or authority, this can be helpful in encouraging employees to report incidents of sexual harassment. A policy should also provide a means of resolving the situation without litigation in most cases and, if the matter does go to court, the existence of a policy would go to demonstrate the good faith of the employer.
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D. IMPORTANT LESSONS
15. IMPORTANT LESSONS FROM CASE LAW
The courts are becoming increasingly sensitive to issues of bullying and sexual harassment. Therefore, it is very important for an employer to comply with the abovementioned provisions. There has been an increase in the number of lawsuits arising from incidents of bullying and sexual harassment and as a result of increased media coverage employees are now more aware of the existence of these issues.
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11. EXTERNAL REPORTING REQUIREMENTS
There are no requirements to report to external bodies in relation to sexual harassment.
C. RECOURSE
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT
Victims of sexual harassment may terminate their contract of employment immediately, requesting a severance payment, and may file a claim for damages.
13. PROVING A CLAIM
Sexual harassment cases can be proved with any kind of evidence (including the use of witnesses and written documents), but the evidence must be sufficient to prove that sexual harassment occurred.
14. REMEDIES AND SANCTIONS
The victim has two options, based on the type of action he or she would like to take. The first option is to terminate the contract of employment immediately. This course of action is possible pursuant to Article 24 of the Labour Law if either the employer harassed the employee (or his or her family) or did not take the necessary measures to prevent the sexual harassment despite being aware of it. The second option is to pursue a claim for compensation. Under the Code of Obligations, a victim has a right to claim pecuniary and non-pecuniary compensation in cases of sexual harassment. The amount of compensation awarded will vary from case to case depending on the harm caused, but it is not typically very high.