Next steps in combating sexual harassment
European jurisdictions exhibit a degree of uniformity in sexual harassment laws, largely due to EU legislation. The EU definition, outlined in the 2006 Equal Treatment Directive, defines sexual harassment as ‘any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment’.
In national equality and anti-discrimination laws, repetition of the offensive behaviour is typically not required for sexual harassment to be deemed unlawful. A key aspect of statutory definitions is that the misconduct must be unwanted. However, national jurisdictions do not always clearly define what constitutes unwanted sexual conduct. This gap is addressed in countries like France and Germany, where national laws provide non-exhaustive examples of unwanted sexual behaviours.
Gender-based violence and harassment specifically violates human rights, undermines equal opportunities and is incompatible with the right to decent work. The introduction of the 2019 International Labour Organisation’s (ILO) Convention on the Elimination of Violence and Harassment in the World of Work (No. 190) marks a significant milestone towards achieving zero tolerance for unacceptable behaviours at work and enhancing protection for victims, regardless of their employment status. Like previous ILO conventions, it is expected to play a pivotal role in shaping and advancing legislative reforms. It broadens the scope of protection by acknowledging that harassment can occur, among other things, ‘through work-related communications, including those enabled by information and communication technologies’ (ICTs). This aligns with the evolving understanding of workplace harassment, emphasising the need for updated policies that address both traditional and digital forms of harassment (See Eurofound research on workplace bullying, harassment and cyberbullying).
As of September 2024, 10 EU Member States (Belgium, Finland, France, Germany, Greece, Ireland, Italy, Portugal, Romania and Spain) have formally ratified the convention or adopted laws to this effect. The implementation of the convention is anticipated to drive legislative changes in ratifying countries – for example, by imposing new obligations on employers to establish and enforce workplace policies, provide training and take prompt action when issues arise. However, in several countries, ratification has yet to result in significant legislative reforms. Sweden stands apart, as a 2021 government inquiry found that Swedish law already aligns with the convention’s standards, and therefore no legislative changes are expected.
In some other countries, trade unions or civil society organisations have mobilised, calling for greater government commitment to fully implement the convention. For example, in France, the General Confederation of Labour (CGT), along with civil society organisations, has been advocating for stronger protections for victims of sexual harassment and the establishment of new social rights for female employees who are victims of domestic violence. As stated in a press release from CGT , ‘for these women, work represents a means of empowerment, a place of refuge, and a potential way out.’
Approaches to addressing sexual harassment
Although the implementation of Equal Treatment Directive has introduced some consistency across Member States’ sexual harassment laws, significant differences remain in how these laws are applied and enforced.
The Nordic countries (Denmark, Finland and Sweden) and some continental countries (such as the Netherlands and Belgium) adopt a preventive approach by placing a duty on employers to proactively prevent sexual harassment. This approach often integrates harassment and sexual harassment into broader health and safety responsibilities, emphasising the identification and mitigation of risks. For instance, in the Netherlands, sexual harassment is considered an occupational health risk and employers must include it in risk inventory and evaluation plans.
In other national jurisdictions, the focus tends to be skewed towards providing legal recourse, sanctioning sexual harassment and clarifying procedures to address instances of such misconduct. For example, the French Labour Code mandates that companies with 250 or more employees appoint a sexual harassment officer to guide, inform and support employees in addressing instances of sexual harassment and sexist behaviour. Additionally, the French criminal code criminalises sexual harassment, imposing penalties of up to three years' imprisonment and a €45,000 fine when the harassment involves abuse of authority, targets a person with a visible vulnerability, involves multiple perpetrators or occurs through digital or electronic means.
Spain exemplifies a combination of both preventive and sanctioning approaches in addressing sexual harassment. It emphasises the employer’s duty of care toward their employees by mandating the implementation of prevention protocols, while also imposing sanctions on employers who fail to adopt these preventive measures.
Ireland and Cyprus have supplemented national legislation on sexual harassment, which implements EU legislation, with voluntary codes of practice. In 2022, the Irish Human Rights and Equality Commission (IHREC) issued a new Code of Practice on Sexual Harassment and Harassment at Work, replacing an earlier version from 2012. The code states that an anti-harassment policy is ‘an integral part of equality strategies in the workplace and will be most effective when operated in conjunction with similar policies on equal opportunity and health and safety’.
In Cyprus, equality legislation is supplemented by two codes of conduct on workplace harassment and sexual harassment, including through electronic forms. One was issued in 2018 by the Ombudsperson for the public sector, and another in 2019 as part of an agreement between major trade unions and employers for the private sector. Although non-binding, these codes prompt employers to prohibit sexual harassment, promote a respectful workplace, provide training and set up mechanisms to handle and investigate complaints.
Recent legislative changes
In Belgium, amended regulations on sexual harassment (and other forms of harassment) came into effect in 2023, prompted by case law from the European Court of Justice (C-404/18 ‘Hakelbracht’) and an infringement proceeding by the European Commission. The case addressed Belgian law on prejudicial measures, which refer to actions taken by any employer in retaliation against an employee who reports or is involved in addressing sexual harassment, violence or discrimination in the workplace. Both the ECJ and the European Commission found that Belgian law was too restrictive compared to EU legislation, as it provided a narrower scope of protection against employer retaliation, covering only formal action. The law was seen as providing insufficient protection against other forms of participation in anti-discrimination activities, such as giving informal advice or standing up for a colleague. The burden of proof was also deemed unduly onerous on the employee, requiring them to demonstrate that the prejudicial measures were directly linked to their involvement in protected activities. The new regulations introduced stronger protections against reprisals, extended safeguards to informal witnesses and revised the timing and process for employer notification. Employers are now required to update their work regulations to include internal procedures for preventing psychosocial risks, in line with the amended law.
In Denmark, recent legislative changes have strengthened protections against sexual harassment in the labour market. In 2023, the Danish Parliament amended the Equal Treatment Act, the Working Environment Act and the Vocational Training Act, following a tripartite agreement between the government and social partners. These amendments clarify employer responsibilities, increase compensation for severe cases of harassment and allow employees to claim damages directly from perpetrators. Notably, the Equal Treatment Act now requires employers to actively address and resolve any incidents of sexual harassment in the workplace. The Working Environment Act now explicitly includes both physical and psychological harassment, while the Vocational Training Act makes it easier for trainees and apprentices to terminate their agreements and allows for the withdrawal of accreditation for learning institutions involved in sexual harassment cases.
Spain is another Member State leading in advancing legislative changes on harassment and sexual harassment at work. Law 15/2022 on equal treatment and non-discrimination, ratifying the ILO Convention, prohibits ‘any provision, conduct, act, criterion, or practice that violates the right to equality’, explicitly mentioning harassment through new technologies and social networks. Furthermore, Organic Law 10/2022 on the comprehensive guarantee of sexual freedom, which complements Organic Law 3/2007 on gender equality, strengthens the requirement for employers to implement prevention and awareness policies against misconduct affecting sexual freedom and moral integrity at work, including digital harassment. The law aims to ensure protection and equality for both women and men, and mandates that sexual violence be included as an occupational risk in risk assessments for various jobs performed by female workers.
In 2018, stringent provisions were introduced in the French criminal code recognising sexual harassment, including acts committed through electronic or digital means, as a criminal offense. The definition was expanded to cover not only comments or behaviours with a sexual connotation but also those of a sexist nature. The law also now covers harassment by multiple individuals, acting together or sequentially, even if each person acts only once and regardless of whether their actions are coordinated. Subsequently, Law No. 2021–1018 aligned the Labour Code's definition of sexual harassment with that of the Criminal Code, shifting the focus from repetitive acts by a single perpetrator to recognising harassment based on the cumulative impact of actions suffered by the victim, irrespective of the number of perpetrators or their individual actions.
Time for (more) change
In the post-#MeToo era, as societal attitudes evolve and women more readily speak out against sexual misconduct, employers are now expected more than ever to step up their efforts to prevent and combat sexual harassment at work. Even in jurisdictions where establishing anti-harassment policies in workplaces is not mandatory, employers are still advised to adopt such policies and actively foster a culture where no forms of harassment are tolerated. Effective policies should include a clear definition of sexual harassment with examples of prohibited conduct. They should also set out comprehensive prevention protocols and establish clear procedures for reporting, investigating complaints and disciplinary actions, including potential dismissal.
This review has also highlighted a significant trend: national legislation in this area is increasingly adapting to the rapid evolution of social media and the growing prevalence of online activities in the workplace, which may serve as a breeding ground for sexual harassment.
Cover image: © Fabio/Adobe Stock
Footnotes