Catharina Calleman 2012

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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,




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,




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.

Catharina Calleman 2012

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