Sexual harassment in the workplace
Published: 11 September 2005
The Federal Ministry for Family Affairs, Senior Citizens, Women and Youth [1] commissioned a comprehensive study (3.2Mb pdf; in German) [2] (short version; 207Kb pdf; in German [3]) on experiences with the Law (in German) [4] for the protection of employees against sexual harassment in the workplace (BSchG; 7Kb pdf; in German [5]). This law became effective on 1 September 1994.[1] http://www.bundesregierung.de/en/Federal-Government/Ministries-,10196/Ministry-for-Family-Affairs_-S.htm[2] http://www.bmfsfj.de/bmfsfj/generator/RedaktionBMFSFJ/Abteilung4/Pdf-Anlagen/beschaeftigtenschutzgesetz,property=pdf[3] http://www.bmfsfj.de/RedaktionBMFSFJ/Abteilung4/Pdf-Anlagen/beschaeftigtenschutzgesetz-kurzfassung,property=pdf.pdf[4] http://bundesrecht.juris.de/bundesrecht/bschg/index.html[5] http://bundesrecht.juris.de/bundesrecht/bschg/gesamt.pdf
The law for the protection against sexual harassment in the workplace is found to have only a limited impact in personnel policies and in the courts.
The Federal Ministry for Family Affairs, Senior Citizens, Women and Youth commissioned a comprehensive study (3.2Mb pdf; in German) (short version; 207Kb pdf; in German) on experiences with the Law (in German) for the protection of employees against sexual harassment in the workplace (BSchG; 7Kb pdf; in German). This law became effective on 1 September 1994.
The study is based on a representative survey in 1,000 companies/public agencies, on an analysis of legislation related to the law, and on interviews with actors at company level and with legal practitioners. It covers the time span of 1994 to 2002.
The law
Key provisions are:
an obligation to protect employees against sexual harassment in the workplace;
measures and sanctions against harassing persons;
preventive measures;
entitlement to complain for the victims of sexual harassment;
prohibition of discrimination due to a complaint against sexual harassment;
obligation of the employer to inform employees about the law;
an employee entitlement to stop work, without loss of payment, as long as the employer does not care for their protection.
Unlike the current EU law (Directive 2002/73/EC - 122Kb pdf), the German legislation requires wilfulness on the part of the harasser, and a ‘recognisable rejection’ of his/her behaviour on the part of the victim. The EU anti-discrimination law focuses instead on ‘unwanted behaviour’. It classifies sexual harassment as discrimination on the grounds of gender, whereas the German law sees it as violating the obligation of the employment contract.
Extent of sexual harassment in the workplace
On average, 5.97 incidents of sexual harassment have been recorded by personnel managers in each workplace. It is estimated that, in one million sites, around 300,000 employees (1.2%) were affected. In addition, a high number of unrecorded cases is assumed. The data, therefore, cannot describe the real extent of sexual harassment.
In 4.8% of workplaces, officially known cases were reported. A further 0.6% of sites noted rumours of cases, and assumed cases were found in 1.5% of sites. Sectors with the highest rates of sexual harassment (about 8%) are transport, banking and insurance business, the health sector and other services.
Female personnel managers report figures that are more than double those reported by male personnel mangers (7.4% compared with 3.3%). The assumption in the report is that female personnel managers received more information on cases of sexual harassment, are more sensitive to the issue, and more often investigate the incident reported to them.
The following table gives an overview of forms of sexual harassment.
| Forms of sexual harassment | % |
|---|---|
| Insinuating remarks | 55.2 |
| Grabbing, deliberate touching | 39.8 |
| Insinuating gestures | 30.3 |
| Staring, meaningful glances | 28.4 |
| Seemingly accidental touching | 25.4 |
| Insinuating jokes | 23.9 |
| Demand for sexual action | 20.4 |
| Derogatory remarks | 19.4 |
| Insult after the rejection of an advance | 12.4 |
| Showing, sending of pornography | 11.9 |
| Displaying pornography | 10.4 |
| Promise of advantages for sexual concessions | 8.0 |
| Whistling behind a person | 7.5 |
| Exerting physical violence to force sexual action | 6.5 |
| Threat of professional disadvantages in cases of rejection of advances | 6.0 |
| Threat of physical violence to force sexual action | 3.0 |
Source: BMFSFJ, Beschäftigtenschutzgesetz in der Praxis, Berlin, 2005; the figures do not reflect the incidence but only the allocation of forms of sexual harassment in the cases reported.
Some 90.5% of victims of sexual harassment are female and 13.9% are male. (These figures add up to more than 100% as more than one person can be concerned in a case.) Harassers are predominantly men (90%). In 14.9% of cases, the harasser was a direct supervisor; in 9.5% of cases, he/she was a more senior supervisor; and, in 8.5% of cases, the harasser was a person external to the company (client, guest, delivery person).
In 28.4% of cases, the victims were only recently employed in the company. Of these, 12.9% were apprentices and 8% were professionals. The study assumes that younger (especially female) employees are particularly exposed.
Sanctions imposed included dismissal (in 26.4% of cases) or a warning (24.9%). Legal action was taken in 9% of cases.
Impact of the law
The overall impression is that most actors in the companies and in the courts have little knowledge regarding the law. Furthermore, 41.9% of the trade union legal protection offices reported that the law is unknown to them.
Company level
Only in 2.3% of the companies did enactment of the law have any direct impact on the personnel management. Just 14.9% of the companies had informed their workforce about the law. Protective measures had been taken in 9.8% of the companies. Procedural rules are scarce, and only 2.3% of responsible personnel managers consider that there is need for further training of the workforce on the issue.
Nonetheless, the survey revealed that more cases of sexual harassment were being presented due to measures taken, such as: providing information about the law, developing company guidelines, organisational measures aimed at protecting women, and establishing contact points for complaints.
Legal level
The majority of cases where sexual harassment in the workplace is an issue involve an application for protection against dismissal by harassers. Protection against sexual harassment can, therefore, conflict with protection against dismissal. These cases usually relate to serious attacks. In many cases, the harasser is in a more senior position and the harassment has taken place repeatedly and continuously. In the labour court procedure, women were generally the victims while the harassers were exclusively male.
In reality, low significance is attached to the law on sexual harassment, and the application is seldom investigated. Only in about half of the relevant trials and in a quarter of initial court hearings did the judiciary refer to the law.
The entitlement of refusing to work or prohibiting discrimination as a result of a complaint against sexual harassment had not been the subject of any trial.
Anni Weiler, AWWW GmbH ArbeitsWelt - Working World
Eurofound recommends citing this publication in the following way.
Eurofound (2005), Sexual harassment in the workplace, article.
