New sexual harassment law adopted

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Given the inadequacy of previous legislation to combat sexual harassment in the workplace, in April 2000 Luxembourg introduced a new law on the issue. The legislation provides for changes to the burden of proof, but no legal penalties. Clauses designed to create a harassment-free working environment are to be a mandatory feature of collective bargaining, and employee representatives are given a role in combating harassment.

A bill on preventing sexual harassment in the workplace was presented to the Chamber of Deputies on 24 April 1998 by the Minister for Women's Rights and passed by a substantial majority on 6 April 2000.

Previous position

Prior to the new law, Luxembourg legislation was virtually silent on issues relating to sexual harassment.

In criminal law, an incident relating to sexual harassment could in some cases be defined as a public affront to moral standards (Articles 383-386 of the Penal Code), an offence against decency (Article 378 of the Penal Code), assault and battery (Articles 98-401bis of the Penal Code), or rape (Article 392 of the Penal Code). In employment legislation, the law of 24 May 1989 allows the victim of sexual harassment to resign with immediate effect, and claim damages for the injury she or he has suffered.

In order to afford the victims of sexual harassment effective protection, it was therefore seen as necessary to introduce specific legislation, particularly in the light of a survey conducted in the course of a 1993 awareness-raising campaign, which revealed that 13% of women said they had been victims of an act of sexual harassment.

Details of the initial bill

The authors of the bill considered that, in criminal terms, the protection of the victim was already sufficiently guaranteed in common law; the bill therefore referred exclusively to civil and employment-related procedures and provided for no legal penalties.

The authors were particularly influenced by proposals set out in the European Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work and its accompanying code of practice on measures to combat sexual harassment. In the initial draft, sexual harassment at the workplace was thus defined as any unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work - which can include unwelcome physical, verbal or non-verbal conduct - and which meets one of the following three conditions.

1. the behaviour is inappropriate, offensive or distressing for the recipient;

2. a person's rejection of or submission to such conduct on the part of the employer, an employee, a customer or a supplier is used expressly or implicitly as the basis for a decision affecting that person's rights in relation to vocational training, employment, continued employment, promotion or salary, or any other decision associated with employment; and/or

3. such conduct creates an intimidating, hostile or humiliating working environment for the recipient.

To avoid any uncertainty, the bill also stated expressly that sexual harassment offends the concept of equal treatment.

Under the initial draft, the employer was held responsible for any act of sexual harassment carried out by its employees, customers or suppliers at the workplace, or in the course of their employment, if it had not taken measures that were reasonably likely to prevent such harassment from taking place.

Trade unions were urged to play a key role in the prevention of sexual harassment at the workplace. Appropriate clauses aimed at creating a harassment-free working environment were to be a mandatory feature of collective bargaining, and in addition there had to be a statement of principle together with a scale of disciplinary measures.

One of the duties of employee representatives and of equality representatives (the appointment of the latter is provided for in the law of 7 July 1998) was to be the protection of the dignity of women and men at the workplace; they would also assist and advise the victims of sexual harassment. The equality representative was to be given specific training in drawing up proposals for action preventing sexual harassment.

The initial bill provided for a mechanism resembling a reversal of the burden of proof, in that it was the duty of the employer, where there was a presumption of sexual harassment, to prove that there was no affront to the victim's dignity.

In order to ensure that the law was properly implemented, and to guarantee the protection of the person subjected to harassment and of witnesses, the bill provided for the reinstatement with no loss of pay of the recipient and of witnesses in the event of dismissal following allegations of sexual harassment. The victim would also have the right to file an emergency injunction linked to a penalty in order to stop the sexual harassment.

When the victim of harassment was able to adduce precise facts in respect of the employer, a work colleague or a third person associated with the employer, she or he could break her contract without notice with damages payable by the employer whose fault led to the immediate termination.

Social partners' positions

In Luxembourg, various Chambers representing economic and social groups give their opinions on legislative proposals affecting them (LU9810172F). The Chamber of Labour (Chambre de Travail), representing blue-collar workers, and the Chamber of Private Sector White-Collar Staff (Chambre des Employés Privés) gave the sexual harassment bill a warm welcome, and objected only to the absence of penalty provisions. The latter Chamber also called for the setting up of a shelter for victims of sexual harassment.

The Chamber of Skilled Trades (Chambre des Métiers) registered its agreement in principle with the government initiative, and expressed its unambiguous disapproval of any behaviour that offended the dignity of women and men at work. However, the Chamber also argued that the bill would not achieve its aims because the approach that had been adopted was likely to trigger injustices that would in turn have serious consequences at a personal and social level. In particular, the Chamber criticised the authors for adopting a "subjective concept" of sexual harassment, claiming that the definition employed by the government was not based in any way on objective criteria that could give employers or the courts an opportunity to define sexual harassment as such. The Chamber believed that the concept of sexual harassment at the workplace should incorporate a definition backed up by concrete examples of behaviour illustrating the definition. Instead of leaving it open to vague interpretation, employers and employees should be made more aware of what offensive behaviour or sexual harassment actually means, stated the Chamber. The definition should obligatorily stress the intentional, voluntary and deliberate nature of any act defined as sexual harassment. Lastly, the Chamber criticised the fact that the burden of proof was to be reversed, and believed that there was a danger of the bill having a negative impact on the way enterprises operate, and of failing to have positive effect for victims of sexual harassment.

The Chamber of Commerce (Chambre de Commerce) stated that it was not unaware of the negative effects of sexual harassment at the workplace, and that it has supported the move to introduce effective ways of combating it. However, the Chamber strongly criticised some of the bill's provisions on the grounds that were disproportionate, and unlikely to achieve the stated objective. The "subjective" definition of sexual harassment, the employer's perceived heavy responsibility (even for actions that have nothing to do with it personally) and the principle of the reversal of the burden of proof caused the Chamber to reject the bill in its entirety. The Chamber argued that there was a danger that the provisions as proposed could easily lead to injustice, and even have a deleterious effect on women's employment.

Criticism from the Council of State

The Council of State (Conseil d'Etat) - which examines all draft laws before they are voted on by the Chamber of Deputies - stated its agreement in principle with the bill, but amended it in line with a number of remarks:

• it strongly criticised the government's intention to apply the law solely in the private sector, and to exclude the public sector;

• it stated that some people react strongly to certain conduct or proposals, while others react more neutrally or even, within limits, in an "amused" manner to identical conduct or proposals. In the view of the Council of State, there is a need to punish the conduct of a person guilty of sexual harassment - conduct which is judged differently according to whether the perpetrator knows, or ought to know, that the behaviour offends the dignity of a person at work. However, the Council was formally opposed to a bill that punished purely subjective allegations on the part of the victim. It thus reformulated the provisions of the bill in the form that was finally adopted (see below); and

• it opposed the reversal of the burden of proof provisions on the grounds that it would not be admissible in law to "furnish proof for something that one has not done".

The terms of the law

The final text of the law largely adopted the reservations expressed by the Council of State. The definition of sexual harassment at the workplace that was finally agreed was defined as any unwanted conduct of a sexual nature, or other conduct based on sex, which the perpetrator knows, or ought to know, affects the dignity of a person at work - which can include unwelcome physical, verbal or non-verbal conduct - and which meets one of the following three conditions:

1. the behaviour is inappropriate, offensive or distressing for the recipient;

2. a person's rejection of or submission to such conduct on the part of the employer, an employee, a customer or a supplier is used expressly or implicitly as the basis for a decision affecting that person's rights in relation to vocational training, employment, continued employment, promotion or salary, or any other decision associated with employment; or

3. such conduct creates an intimidating, hostile or humiliating working environment for the recipient.

Given the Council of State's formal opposition in respect of reversing the burden of proof, agreement was reached on the following procedure:

• the person who claims to be the victim of sexual harassment initially furnishes "proof of harassment" and must then prove the "existence of conduct that meets one of the criteria for sexual harassment" set out in the law; and

• if this fact is proved by the victim, there is a "presumption of the perpetrator's intention".

In other words, the victim must furnish proof that she or he has been harassed, and as soon as material proof has been established, the perpetrator has to prove that there was no intention on his or her part.

The law provides for the president of the Labour Tribunal to reinstate the victim and witnesses with no loss of pay in the event of dismissal following allegations of sexual harassment. The victim also has the right to file an emergency injunction linked to a penalty in order to stop the sexual harassment. When the victim is able to adduce precise facts relating to the employer, a work colleague or a third person associated with the employer, she or he may break her or his contract without notice, with damages payable by the employer whose fault led to the immediate termination.

The law has been worded in such a way that it will also be enforceable in the public sector.

The provisions set out in the initial bill relating to the involvement of employee representatives and to the role of the social partners when negotiating collective agreements have been retained.

Lastly, the law contains no penalties, while monitoring will be the responsibility of the Inspectorate of Labour and Mines (Inspection du Travail et des Mines).

Commentary

The new legislation fills a void in Luxembourg law, whereby incidents related to sexual harassment have previously been dealt with under criminal law.

Only the future will reveal the extent to which the law will come to the assistance of the 13% of women who say they have been victims of sexual harassment.

There is arguably a danger that the new burden of proof provisions will place the perpetrator of material facts deemed to constitute sexual harassment in the impossible position of having to demonstrate that there was no intention on his or her part to bring about such an outcome. (Marc Feyereisen)