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XX World Congress of
Labour and Social Security Law
Santiago de Chile,
September 2012
Questionnaire on theme II:
SEXUAL HARASSMENT
Catharina CallemanAss. Prof. of Labour Law
Department of Law/JPSrebro university
701 82 rebro
Sweden
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1. CONCEPT AND DEFINITIONS
1.1 Is the concept of sexual harassment acknowledged in your
country?
Sexual harassment is a concept of labour law (and also of penal law, but
under different labels/classifications). Sexual harassment is supposed to
be widely spread. A report on sexual harassment was written in the
Equal Opportunities Office in 1995 (this is long time ago, but no official
report exclusively on that topic has been produced since that). This
report claimed sexual harassment was a reality to hundreds of
thousands of women in the Swedish labour market. Sexual harassment
was seen as a serious threat to their pleasure in work, health, economy
and advancement in working life.
There are also other reports on the topic, for example reports from
various segments of the labour market made by the Work Environment
Authority. These reports show that young women, women with low
education and women in temporary work are the ones most often
subject to sexual harassment. Women are considerably more exposed
to sexual harassment than men, but also men are sexually harassed.
Sexual harassment is said to be most common in workplaces highly
dominated by one sex and primarily in workplaces dominated by men.
Few instances of sexual harassment have been reported to the Equality
Ombudsman (now Discrimination Ombudsman). In the years 1998-
2005, according to statistics made in the Equality Ombudsmans
Authority, 124 incidences of sexual harassment were reported to the
Ombudsman. Women reported ninety per cent of these incidences. Out
of the reports mentioned only four reached the Labour Court (Labour
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Court Judgments 2002 no 102, 2005 no 22, 2005 no 63 and 2006 no
54).Since that, only one case (Labour Court Judgment 2011 no 13) has
ended up in court.
History of legislation on sexual harassment in Sweden
From the beginning, the Equal Opportunities Act (1979:1118) did not
contain any provisions on sexual harassment, only harassment on the
basis of sex. As labour law in principle addresses the relationship
between an employer and an employee, the Equal Opportunities Act
also originally did not concern harassment directed towards one
employee by another employee.
In 1992 provisions on sexual harassment were introduced in the Equal
Opportunities Act (1991:433). Employers were then obliged to be active
to safeguard that no employee was subject to sexual harassment in the
workplace. It was also prohibited for an employer to harass or reprise an
employee on the basis that she (or he) had rejected his (or her) sexual
advances or had made a report on sex discrimination. Such harassment
or reprisal from the part of an employer could imply for example
worsened working or employment conditions.
An explicit definition of sexual harassment was introduced into the Equal
Opportunities Act in 1998. The employer was then also given certain
obligations to intervene in cases where one employee had harassed
another employee. In 2005 harassment on the basis of sex and sexual
harassment were separated into two different offences with two
separate definitions. Both were explicitly prohibited. Through these
amendments, the directive 2002/73/EC on equal treatment for men and
women was considered implemented in Swedish law. Simultaneously,
the protection against harassment/reprisals was widened to include
reprisals because an employee 1. had reported or called attention to the
fact that the employer has acted contrary to the Equal Opportunities Act,
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2. had participated in an investigation under the Act, or 3. had rejected
harassment or sexual harassment on the part of the employer.
Definition of sexual harassment
Today sexual harassment is defined in the Swedish Discrimination Act
(2008:567) as a conduct of a sexual nature that violates someones
dignity (chapter 1 section 4.4). (References to chapters and sections
made hereafter regard the Discrimination Act). According to the
preparatory works, sexual harassment includes verbal expressions or
physical violations. Also the showing of pornographic pictures, whistling
or offensive gestures are included. Attitudes or jokes that are not
directed to one or several individuals are usually not included. Theperson subjected to the harassment is the one to decide whether the
acts or verbal expressions are offensive or not. This person has to make
clear that the acts or words are offensive to her. On certain occasions,
when the offensive nature of the act or verbal expression must be
obvious to the harasser, the person subjected to the harassment does
not have to make a special statement on this. These elements of the
definition and also delimitations between harassment on the basis of
sex, harassment on the basis of ethnicity and sexual harassment were
illuminated and discussed in the Labour Court Judgement 2011 no 13.
According to the Discrimination Act sexual harassment is equal to
discrimination. Discrimination is prohibited: An employer may not
discriminate against a person who, with respect to the employer,
1. is an employee,
2. is enquiring about or applying for work,
3. is applying for or carrying out a traineeship, or
4. is available to perform work or is performing work as temporary
agency or borrowed labour. (Chapter 2 section 1 paragraph 1).
This implies that an employer must not subject either of the categories
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to be discriminated against is, in turn, considered to be a fundamental
human right.
1.4 How have been classified the different forms of sexual
harassment in your country (vertical, horizontal, etc.)?
To my knowledge, the terms vertical and horizontal discrimination are
not used in Sweden, but two different sets of rules exist for two different
occasions.
A/ As regards sexual harassment from the part of the employer or from
a person who has the right to make decisions on the employers behalf,
this is prohibited as being discrimination. The employer may be liable to
damages if subjecting an employee to sexual harassment (Chapter 5,
section 1).
B/ As regards harassment of one employee by another employee, it is
the responsibility of the employer to safeguard the workplace from
sexual harassment and other harassment of employees. In that sense it
is similar to and could be considered a work environment issue.
1.5 Is sexual harassment considered to be something different
from mobbing?
Sexual harassment is part of the definition of Victimization at work of the
Ordinance AFS 1993:17, but sexual harassment may exist (andprobably most often does exist) outside such a context. The definition of
sexual harassment makes it something specific and different from
mobbing (see 1.3)
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2. PREVENTION
2.1 Do you have, in your country any form of machinery to prevent
sexual harassment? Please, describe this if it exists?
Firstly, employers have the general obligation to promote equal rights
and opportunities: Within the framework of their activities, employers
are to conduct goal-oriented work to actively promote equal rights and
opportunities in working life regardless of sex, ethnicity, religion or other
belief. (Chapter 3 Section 3).
More specificallyconcerning sexual harassment, Employers are to take
measures to prevent and hinder any employee being subjected to
harassment or reprisals associated with sex, ethnicity, religion or other
belief, or to sexual harassment. (Chapter 3, section 6).
Such measures to prevent sexual harassment are to be included in the
employers Gender Equality Plan. Every three years employers who are
employing 25 employees or more are to draw up a plan for their genderequality work. The plan is supposed to be made in cooperation between
employers and employees. It is to contain an overview of - among
others - the measures under section 6, that is measures to prevent
sexual harassment, that are needed at the workplace and also an
account of which of these measures the employer intends to begin or
implement during the coming years. An account of how the planned
measures under the first paragraph have been implemented is to be
included in the next plan. (Chapter 3, Section 13). Detailed instructions
on gender equality plans are to be found in the homepage of the
Discrimination Ombudsman.
An employer who does not fulfil his or her obligations concerning active
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measures including a gender equality plan may be ordered to fulfil them
subject to financial penalty. Orders to fulfil such obligations are issued
by the Board against Discrimination on application from the
Discrimination Ombudsman (Chapter 4, section 5).
2.2 Has this machinery been established by statutory regulation, or
it has been established pursuant to an agreement?
The machinery to prevent harassment via proactive measures has been
established by statutory regulation, in the Discrimination Act.
According to statutory legislation machinery is to be further established
in detail in a Gender equality plan agreed upon by the employer and
employees (compulsory only in workplaces with minimum 25
employees) or by anypolicy documents, issued by the employer, usually
after negotiations with trade unions or other representatives of the staff.
These documents may state who is the person or the group of persons
in charge and the procedure to be observed when sexual harassment is
reported.
3. LIABILITY
3.1 What systems of liability are contemplated with respect to
sexual harassment, for example, constitutional liability, statutory
liability under the labour law, torts law, penal law, etc.?
Statutory liability under labour law andpossiblyunder penal law are
contemplated with respect to sexual harassment.
An employer may be liable to damages if subjecting an employee to
sexual harassment (Chapter 5, section 1). Damages in discrimination
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cases have been renamed into discrimination fees. Such fees are
supposed to be higher than other labour law damages. The reason for
this is protection against discrimination is considered to be a human
right and sanctions therefore are to have a deterrent effect. It is however
questionable whether the fees have in fact, so far, been raised above
the ordinary level of damages in labour law.
An employer or an employee who is subjecting an employee to sexual
harassment may also be sentenced according to penal law, for
molestation, sexual molestation, sexual coercion, sexual exploitation or
rape.
An employer who does not fulfil his or her obligations concerning active
measures to prevent harassment may be ordered to fulfil them subject
to a financial penalty. The Board against Discrimination issues such
orders on application from the Discrimination Ombudsman (Chapter 4,
section 5).
Finally, an employer may be liable to damages on the grounds that an
employee has felt forced to terminate her employment because of
sexual harassment. This may occur if the employee has reported the
harassment but the employer has remained passive and the harassment
continues till it becomes intolerable to the employee. This was the case
in Labour Court Judgement 1993 no 30, where the employer was
considered responsible for the employees termination of her
employment.
3.2 Is sexual harassment considered like an occupational risk
(professional illness or accident at work)?
It is well known and it is obvious from court cases that the
person/woman (so far there has been no court case where a man has
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been the victim) subject to sexual harassment often becomes ill from
fear, anxiety, with depression or other illness. Sexual harassment is also
known to affect the self-esteem of the person victimized and thus
presumably their performance at work.
3.3 What obligations are put on the employers shoulders during
the employment relationship with a view to preventing sexual
harassment or to undertaking remedial action if such occurs?
.Firstly, employers are to take general proactive measures to prevent
any employee from being subjected to sexual harassment, as part ofmeasures to be taken in order to prevent all kinds of discrimination
(Chapter 3, section 6). Examples may be issuing policies and make
these well known.
Secondly, an employer who has been informed that one (or several) of
the employees is in fact being sexually harassed, is obliged to take
measures to stop that harassment. It is stated that:
If an employer becomes aware that an employee considers that he or
she has been subjected in connection with work to harassment or
sexual harassment by someone performing work or carrying out a
traineeship at the employers establishment, the employer is obliged to
investigate the circumstances surrounding the alleged harassment and
where appropriate take the measures that can reasonably be
demanded to prevent harassment in the future. This obligation also
applies with respect to a person carrying out a traineeship or performing
work as temporary agency or borrowed labour. (Chapter 2, section 3).
The obligation of the employer is to take measures to prevent further
harassment in the future.
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Once an incidence of sexual harassment has been reported, the
employer must promptly start an investigation. In the Labour Court
Judgements 2002 no 102 and 2005 no 22 the employer was considered
to have been too passive. In the first case the employer was considered
not to have even tried to investigate what had happened after an
employee had reported on sexual harassment. In the second case,
where an employee had told the employer she had been raped outside
the workplace by another employee, the employer was considered
obligated to promptly investigate the conditions within the workplace.
The employer is supposed to talk to both parties and possible
witnesses, to listen carefully and act with discretion. He is also to
discuss possible measures with the person harassed. Whether she
wishes measures to be taken or not, the employer is obliged to prevent
further harassment. Furthermore, the employer shall inform the parties
on the investigation to be made and measures to be taken.
Measures to be taken may imply talking to the offender, warning the
offender, relocating the offender or in more severe cases and after
due proceduredismissing the offender.
If the harassment continues after the reported instance, the employer
may be considered not to have taken the measures necessary and may
be liable to damages (Chapter 5, section 1).
3.4 What active subjects (perpetrators, harassers) are
contemplated with regard to this figure?
? Please, see 4.3.
3.5 Is there a complaint procedure, either before (a) the enterprise,
(b) an administrative authority, (c) any other institution or body, (d)
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a person?
Please, describe it if such procedure exists.
According to the Discrimination Act, a person who is experiencing
harassment from the part of the employer or a person who has the right
to make decisions on the employers behalf, is in the first place to turn to
the trade union, if she is the member of the trade union (which is most
often the case in Sweden). The trade union is then expected to
represent her in negotiations with the employer and eventually in court.
If the trade union, for some reason, is not taking on her case, she may
turn to the Discrimination Ombudsman or to a non-governmental
organisation engaged in anti-discrimination matters, which will then
eventually represent her in negotiations with the employer or in court
(Chapter 6, section 2). If this authority or organisation for some reason is
not willing to take on her case, she may ultimately turn to a lawyer to
represent her in court.
If the enterprise or administrative authority has established a policy
document on sexual harassment, this document would usually prescribe
a certain complaint procedure for sexual harassment within the
enterprise or the public authority. Also in these cases, the trade union
would usually represent a person who is a member in negotiations with
the employer. If the trade union or the Discrimination Ombudsman is
representing a person in court, these will bear any costs connected with
the procedure.
3.6 Can interim relief/protective measures be provided for while
proceedings are underway?
Either of the parties (preferably the alleged harasser) may be relocated
or evenin very serious casesthe harasser may be temporarily
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secluded from work.
3.7 What measures can an employer take against a sexual harasser
in his/her enterprise?
An employer may simply state that sexual harassment is not accepted in
the work place or warn a sexual harasser, or relocate him or dismiss
him. In the first case of sexual harassment in the Labour Court (Labour
Court judgement 1987 no 98), the employer relocated the sexually
harassed woman in question, but this measure was heavily criticized.
In litigations on dismissal because of sexual harassment, the court has
made high demands on the evidence of sexual harassment invoked by
the employer. The court has also demanded that the harasser gets a
chance to improve his behaviour before considering dismissal. Before
dismissing him, the employer must try to make the harasser change his
behaviour (Labour Court Judgements 1996 no 55 and no 82).
In one fairly recent case the court however found it acceptable for the
employer to summarily dismiss the harasser (Labour Court judgement
2006 no 54). In this case the harasser had seriously harassed a young
and temporarily employed woman although she had several times told
him that his behaviour was not tolerable.
3.8 What recourses/complaints can be brought by a worker who
has been sexually harassed?
In case the harassment was earlier reported to the employer, the
harassed person may claim that the employer did not take the measures
necessary to prevent further harassment and that the employer is
therefore to pay damages to her.
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3.9 What indemnities/compensation can be claimed by a worker
who has been harassed?
See 3.8.
An employer may be liable to damages on the grounds that an
employee has felt forced to terminate her employment because of
sexual harassment. This may occur if the employee has reported the
harassment but the employer has remained passive and the harassment
continues and eventually becomes intolerable to the employee.
3.10 Whats the legal situation when the victim of harassment is an
employee of a contractor/service provider or an employee on lease
from a third party (for example of a temporary work agency)?
The employer has the same obligations in the relation to such a person
as to an employee. Categories encompassed by the protection of the
Discrimination Act are persons who, with respect to the employer,
1. is an employee,
2. is enquiring about or applying for work,
3. is applying for or carrying out a traineeship, or
4. is available to perform work or is performing work as temporary
agency or borrowed labour. (Chapter 2 section 1 paragraph 1).
4. OTHER
4.1 Have issues relating to sexual harassment been actually dealt
with by collective agreements or other accords?
Not to my knowledge by collective agreements: They are usually dealt
with in gender equality plans or in policy documents.
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4.2 Please, add any other element (from law or practice) that you
would feel relevant for this questionnaire?
In my opinion the possible consequences for an employee who has
reported harassment is a very important issue. In the early existence of
the Equal Opportunities Act, women who had reported harassment or
other discrimination again turned to the Equal Opportunities Office with
complaints over harassment because of the reporting. As a
consequence of that it is now stated in the Discrimination Act that an
employer may not subject an employee to reprisals because the
employee has
1. Reported or called attention to the fact that the employer has acted
contrary to the Discrimination Act
2. Participated in an investigation under the Act
3. Rejected sexual harassment on the part of the employer
This prohibition also applies in relation to a person who, with respect to
the employer,
1. is enquiring about or applying for work,
2. is applying for or carrying out a traineeship, or
3. is available to perform work or is performing work as temporary
agency or borrowed labour (Chapter 2, section 18).
The prohibition applies not only to the employer but also to any person
who has the right to make decisions on the employers behalf on matters
concerning someone referred to in the paragraph.
4.3 If you feel this questionnaire or some of the questions here
raised are difficult to understand, please briefly explain the reason
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for such difficulties.
I am sorry to say I do not understand question 3.4.
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