 
| |
New EU Proposal On Sexual Harassment
Ana Luisa de Brito Machado
Human Resources Project 2001
On June 7, 2000, the European Commission ("EC") adopted a proposal to bar
sexual harassment at work. This is the latest development in the EC package of legislation
designed to counter discrimination inside – and outside – the workplace. As the
proposal is the first attempt to tackle sexual harassment in European Union Community Law,
multinationals doing business in EU member states should watch future developments
closely, as the end result could directly impact workplace policies throughout the
European Union.
Background
Late in 1999, the EC issued a package of measures, based on the new Article 13 of the
Treaty establishing the European Community ("Treaty"), designed to combat forms
of discrimination that are still unprotected by EU law. Article 13 is not confined to the
employment field. It empowers the Council of the European Union to take "appropriate
actions to combat discrimination based on sex, racial or ethnic origin, religion or
beliefs, disability, age, or sexual orientation." Article 13 proposals require
unanimous approval.
The package of measures based on Article 13 is composed of:
- A draft Framework Directive establishing equal treatment and
barring discrimination in employment on the grounds of racial or ethnic origin, religion
or belief, disability, age, and sexual orientation;
- A draft Directive implementing the principle of equal treatment
irrespective of racial or ethnic origin in employment, social protection, education,
access to goods and services, and cultural activities; and,
- A proposed EU-wide anti-discrimination action program.
The proposed Framework Directive does not cover sex discrimination. This was considered
unnecessary since sex discrimination is already covered by various EU Directives
(principally Directive 76/207 on Equal Treatment, but also the Equal Pay and Pregnant
Workers Directives).
Amendment Of Equal Treatment Directive 76/207: The Proposals
As a result of the piecemeal way in which EU discrimination protection is evolving, if
and when the Framework Directive is enacted, sexual harassment would be the only form of
harassment not contained in a Directive. To redress this situation, and to update the
Equal Treatment Directive 76/207, the European Commission has proposed to amend Directive
76/207. The Commission states that Directive 76/207 must be amended to "ensure
coherence between secondary legislation on identical issues, such as the concept of
indirect discrimination or the need for member states to have independent bodies for the
promotion of equal treatment in the same area of employment." The amendments will be
based on Article 141 of the Treaty, which concerns equal treatment in the employment field
only.
A memorandum to the proposal explains that the proposed amendments:
- For the first time, clearly define sexual harassment as
discrimination based on sex;
- Reinforce protection for employees who complain about
discrimination, even when the employment relationship has ended. Sex discrimination that
affects employees after the employment relationship has ended has long been problematic.
ECJ caselaw confirms, however, that former employees are protected. A proposed amendment
to Directive 76/207 provides that member states introduce specific protection for those
wronged by failure to apply the principle of equal treatment even after the employment
relationship has ended;
- Require member states to set up national bodies for the enforcement
of equal opportunities and to ensure judicial control of all the rights granted by the
Directive, as well as to impose adequate sanctions in cases of discrimination;
- Clarify the right of member states to provide for derogation’s
from the principle of equal access to employment (member states will be obliged to justify
any ban on women in specific jobs when the sex of the worker constitutes a determining
factor);
- Acknowledge that special protection should be granted to women
because of their biological condition and their rights to return to the same workplace
after maternity leave; and,
- Implement Article 141(4) of the Treaty by stating that member
states are entitled to adopt positive action measures to promote equality for men and
women and should report on their activities regularly.
The Definition Of Sexual Harassment
The proposed inclusion of sexual harassment within the body of a directive is new.
However, since 1991, sexual harassment has been covered by a specific EU Code of Practice
("Code") on measures to combat sexual harassment (annexed to a Commission
Recommendation of November 27, 1991).
The Code describes sexual harassment as:
"Unwanted conduct of a sexual nature, or other conduct based on sex affecting the
dignity of women and men at work. This can include unwelcome physical, verbal, or
non-verbal conduct. Thus, a range of behaviour may be considered to constitute sexual
harassment. It is unacceptable if such conduct is unwanted, unreasonable, and offensive to
the recipient; a person’s rejection of or submission to such conduct on the part of
the employers or workers (including superiors or colleagues) if used explicitly or
implicitly as a basis for a decision which affects that person’s access to vocational
training or to employment, continued employment, promotion, salary, or any other
employment decisions; and/or such conduct creates an intimidating, hostile, or humiliating
working environment for the recipient. The essential characteristic of sexual harassment
is that it is unwanted by the recipient, that it is for each individual to determine what
behaviour is acceptable to them and what they regard as offensive. Sexual attention
becomes sexual harassment if it is persisted in once it has been made clear that it is
regarded by the recipient as offensive, although one incident of harassment may constitute
sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which
distinguishes sexual harassment from friendly behaviour, which is welcome and
mutual."
Notwithstanding the existence of the Code, it has been concluded that a comprehensive
policy at the EU level is necessary.
The proposed definition for Directive 76/207 is:
"Sexual harassment shall be deemed to be discrimination on the grounds of sex at
the workplace when unwanted conduct related to sex takes place with the purpose[s] or
effect of affecting the ability of a person and/or creating an intimidating, hostile,
offensive, or disturbing environment, in particular if a person’s rejection of or
submission to such conduct is used as a basis for a decision which affects that
person."
The proposed definition provides unequivocally, for the first time, that sexual
harassment is "discrimination on the grounds of sex."
The proposal has met with a mixed response. UNICE, the European-level private sector
employers’ organisation, does not agree with the definition of sexual harassment as
sex discrimination. UNICE maintains that this is a matter best left to regulation by
individual member states, possibly by means of general anti-harassment legislation common
to all the many forms of harassment with standards of proof, sanctions, and remedies
different from those pertaining to sex discrimination law.
However, the European Trades Union Congress ("ETUC") and the European
Women’s Lobby welcome the proposal, particularly the fact that sexual harassment is
identified, defined, and highlighted, and believe that it should be treated as a form of
sex discrimination. However, both the ETUC and the Women’s Lobby believe the proposal
does not go far enough and favour instead an approach such as that contained in the Irish
Employment Equality Act 1999, which obliges employers to take "reasonable steps to
create an environment free of harassment."
The proposed definition accords generally with the harassment definition proposed for the
Framework Directive, which states:
"Harassment of a person related to any of the discriminatory grounds and areas ...
which has the purpose or effect of creating an intimidating, hostile, offensive, or
disturbing environment shall be deemed to be discrimination..."
The new definitions are derived from a combination of the Code definition and the
sexual harassment guidelines of the U.S. Equal Employment Opportunity Commission.
Indirect Discrimination
The proposed amendments to Directive 76/207 also call for a definition of indirect
discrimination to be inserted into the Directive. The proposed definition is:
"... indirect discrimination shall exist where an apparently neutral provision,
criterion, or practice disadvantages a substantially higher proportion of the members of
one sex unless that provision, criterion, or practice is appropriate and necessary and can
be justified by objective factors unrelated to sex."
This is based word-for-word on the definition contained in the Burden of Proof
Directive 97/80 EEC in cases of discrimination based on sex. This is unsurprising, as the
relatively recent Burden of Proof Directive was implemented, in part, to provide a
definition of indirect discrimination to be applied in cases of sex discrimination (but
not other forms of discrimination). However, the definition has long been criticised
because of the emphasis it places on the production and analysis of statistics that may be
needed to show that a "substantially higher proportion" of one sex is
disadvantaged. Such statistics may not be readily available nor is there any guarantee
that any two courts or tribunals will agree on what "substantially higher"
means.
Additionally, the proposed definition of indirect discrimination for the amendments to
Directive 76/207 differs from that proposed for the Framework Directive. The proposed
definition for the Framework Directive is:
"…indirect discrimination shall be taken to occur where an apparently neutral
provision, criterion, or practice is liable to adversely affect a person or persons to
whom any of the grounds referred to.... applies unless that provision, criterion, or
practice is objectively justified by a legitimate aim and the means of achieving it are
appropriate and necessary."
This definition is derived from ECJ caselaw on nationality to create a test that does
not necessarily depend on the production or analysis of statistics. Explanatory notes
provide that the "liability test" may be proven on the basis of statistical
evidence or by any other means that demonstrate that the provision would be intrinsically
disadvantageous for the person or persons concerned. There is no indication, however, of
what those "other means" might be.
Strangely, whilst the proposed definition for the Framework Directive provides an
alternative to the statistical approach and attendant difficulties, the proposed Equal
Treatment Directive definition does not.
Enforcement
A proposed amendment requires member states to lay down a system of "rules or
penalties" for breaching the national provisions adopted pursuant to the Directive
and to use all measures necessary to ensure that those penalties are applied. In the words
of the proposal, "[the] penalties thus provided for shall be effective,
proportionate, and dissuasive." The word "penalties" is new, as is the
direction that they should be "dissuasive."
Conclusion
It is uncertain whether the current French presidency of the European Council will
progress the proposal as a matter of priority during the next six months. However, the
Swedish presidency that will follow it has already indicated that it considers equal
opportunities between men and women a priority and may well fast track the new directives
and these proposed amendments. As a result, multinational corporations operating in the
European Union are well advised to monitor these developments closely.
|
