In the previous article, we introduced the definition of harassment and the options available to employees in response to this phenomenon. In this article, we will focus on one type of harassment – sexual harassment – and the options available to individuals experiencing this type of harassment.
1. Sexual harassment
Sexual harassment is discrimination based on gender, in the form of any unwelcome conduct of a sexual nature or related to an employee's gender, with the purpose or effect of violating the employee's dignity, in particular by creating an intimidating, hostile, degrading, humiliating, or offensive environment. Such behavior can manifest itself physically, verbally, or non-verbally.
2. Employee Opportunities
First of all, it should be emphasized that an employee's submission to harassment or sexual harassment, or even taking action to oppose such behavior, cannot result in any negative consequences for him or her.
Therefore, an employee should not be afraid to react to actions that constitute harassment, or more precisely, sexual harassment.
Expressing an objection is extremely important – it will help demonstrate later that the undesirable conduct occurred and the victim did not consent to it.
Dissent can take various forms – both verbal and non-verbal. It's worth emphasizing, however, that regardless of the response, there are no negative consequences for an employee submitting to or opposing harassment or sexual harassment.
3. Unwanted sexual behavior
The Code's regulations lead to the conclusion that physical contact with a victim of sexual harassment is not necessary for the conduct to be deemed unwelcome. Harassment can be verbal and can include only statements, such as comments or remarks of a sexual nature. The literature correctly notes that, in light of various national definitions, sexually motivated behavior includes: "offensive flirting," "making sexual propositions or demands," "exerting sexual pressure," and "making suggestive remarks."
An employee may take the matter to court to obtain due compensation. In such proceedings, the employer must prove that such conduct did not occur, while the employee must merely substantiate the occurrence of sexual conduct and express opposition to it (e.g., by avoiding contact with the perpetrator or not reciprocating). This is also confirmed by Supreme Court case law, including the judgment of November 7, 2018, file reference: II PK 229/17. Proof must be distinguished from plausibility, which has no legal definition. This means that the employee must merely substantiate their claim in such a way that the judge is at least convinced, or even certain, of the probability of the assertion of a specific fact.
In connection with the above, it should be remembered that although legal proceedings for compensation for discrimination are not the easiest ones, the applicable regulations make it easier to obtain due compensation for a person who has experienced undesirable conduct at work, for example by shifting the burden of proof to the employer.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of February 28, 2025
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