What if sexual harassment was legal?


Ulrike Lembke

To person

Dr. iur .; Junior Professor for Public Law and Legal Gender Studies, University of Hamburg, Rothenbaumchaussee 33, 20148 Hamburg. [email protected]

The Federal Labor Court (BAG) summarized the status of the law and case law against sexual harassment in the workplace in 2011 on the occasion of a dismissal dispute as follows: [1] Sexual harassment prohibited under the General Equal Treatment Act (AGG) exists if "undesirable, sexually determined behavior aims or causes the dignity of the person concerned to be violated, in particular if an environment characterized by intimidation, hostility, humiliation, degradation or insult is created ". The behavior recorded also includes "unwanted sexual acts and requests to do so, sexually specific physical contact, comments of sexual content as well as unwanted showing and visible attachment of pornographic representations". Even a single attack can constitute an offense. Sexual harassment does not necessarily require intent, it does not have to be "aimed at", but can also be "brought about": In this case, contrary intentions or ideas of the harassing person are irrelevant. [2] Whether a behavior is undesirable is determined by its objective recognizability; an active rejection by the person concerned is not required. Multiple verbal harassment of a colleague can in principle justify an extraordinary termination. The employer's sanction must be appropriate taking into account the interests involved and the scope and intensity of the harassment. It is therefore necessary to check in each individual case whether a milder measure such as a warning or implementation is necessary. However, the law obliges the employer to rule out repetition of the sexual harassment.

This decision of the Federal Labor Court marks the preliminary result of a long road in the struggle for effective legal concepts against sexual harassment.

Dignity or equality?

Sexual harassment has only been discussed in terms of legal policy in Germany since the "Busengrapscher Affair" [3] in 1983, when it emerged that a member of the Bundestag of the Greens had harassed employees of the parliamentary group. However, the legal discourse exercised considerable restraint towards this "dirty topic" and showed great susceptibility to stereotypes such as "intimacy", "irrelevance" and "abuse of law", which also played a major role in the debates at the beginning of 2013 in order to deny sexism or justify. [4] In addition, sexual harassment was understood as a rare individual misconduct and its legal assessment was experienced as difficult, as the "sensitivity" of those affected seemed to play an essential role. In particular, verbal harassment or light touch were dismissed as flirtation or misunderstanding. Given the current state of research [5] since the 1980s, these legal views could not be explained, after all, it was known that sexual harassment was widespread and that even low-threshold harassment can create an environment that severely affects those affected, that men and women are amazing agree which acts constitute sexual harassment and which do not, and that the personal, health and social consequences are so serious that legal measures (also) appear indispensable.

As early as 1995, today's constitutional judge Susanne Baer explained that the difficulties of the legal discourse in dealing with sexual harassment are a homemade problem, which is mainly based on the incorrect construction of sexual harassment as a violation of dignity. [6] The protection of dignity leads to individualization, ignores the context, favors a paternalistic or the perpetrator perspective, states ideal victim behavior and, overall, focuses on the wrong questions. In contrast, she suggested understanding sexual harassment as a form of gender discrimination with which hierarchical gender relations in working life are maintained or created.

Incidentally, gender discrimination does not simply mean "discrimination against women", even if it is based on an asymmetrical concept. [7] The concern of men was also the subject of the research mentioned, [8] although unfortunately there is still a lack of representative data; However, it was always noticeable that the risk of sexual harassment increased for men if they were accused of "unmanliness" or homosexuality.

As a consequence of a discrimination approach, Susanne Baer called for a different legal understanding of sexual harassment, which does not have to be intentional, can come from superiors, colleagues or third parties, the prevention of which the employers are obliged to prevent and the compensation claims of those affected triggers, which are to be asserted effectively and independently according to civil law principles. The judgment of the Federal Labor Court cited at the beginning shows how far these claims have become applicable law.

Right against sexual harassment

First, however, the Employment Protection Act (BeschSchG) came into force in June 1994 as the first comprehensive regulation. It defined sexual harassment as willful, sexually determined behavior that violates the dignity of employees in the workplace, and granted rights of appeal, claims for damages and compensation. A study from 2002 showed, however, that the BeschSchG remained almost completely ineffective: [9] Only a fraction of the incidents were reported at all, those responsible in companies, administrations and courts were hardly aware of the law, and it even occurred in relevant legal proceedings almost never used. Instead, stereotypes about the supposedly private nature of the conflicts shaped the judges' decision-making process. Beyond this disconcerting denial of rights, however, the suitability of the BeschSchG to effectively protect against sexual harassment would be more than questionable, since it took the perspective of the harasser with the premeditation requirement and imposed obligations of conduct on the person concerned with the interpretation-open requirement of "recognizable rejection", which also regularly cause rape trials to fail. [10] In addition, by focusing exclusively on dignity, it encouraged the misunderstanding that sexual harassment was primarily related to sexuality and embarrassment.

The European Gender Equality Directive 2002/73 / EC explicitly named sexual harassment as discrimination based on gender for the first time. In implementation in many European countries [11], this led to a double approach: the requirement of violation of dignity was retained, but at the same time the problem of sexual harassment was assigned to anti-discrimination law. This entailed significant legal consequences such as easier evidence for those affected, but also the waiver of the fault of the harassing party and a ban on upper limits for compensation claims. In Germany, liability law first had to be adjusted so that compensation for pain and suffering could be claimed regardless of fault and (regardless of gender [12]) in the event of violations of sexual self-determination. The fault requirement for labor or service law sanctions was met with an objective standard. [13] Since then, the courts have had to determine whether the dignity of those affected has been violated or whether a gender hierarchy has been exploited or created. The latter is made more difficult by the fact that sexual harassment in the AGG, which was passed in 2006, is not explicitly named as gender discrimination, but is referred to as "disadvantage" unspecifically to all grounds of discrimination in the AGG. Of course, sexual harassment can also be an expression of intersectional discrimination, [14] but unfortunately this is not what the legislature means. The confusing legal regulation makes it difficult for legal practice to develop the double access of protection of dignity and anti-discrimination. Furthermore, only protection in the workplace was comprehensively regulated, although the need for protection in other areas is not significantly lower.