Sexual Harassment at Work
According to a survey conducted by the IFOP institute for the website viehealthy.com , from 26 to 29 January 2018, among a sample of 2008 women, 32% of women have been victims of sexual harassment at work during their professional life .
- What are the most common behaviors?
- Verbal and visual harassment is the most common ; it consists of facts such as hisses, gestures or rude comments, leering eyes (winks, glances libidinous …): 34% of the women interviewed were victims at least once .
They are also embarrassing remarks about the dress or the physical (27%), of obscene remarks or writings with sexual connotation (16%), to compel a woman to have to see or receive texts, photos or videos sexual despite its signs of disinterest for this type of content (10%).
- Physical harassment also affects a significant number of women : 24% of them report being subjected to light physical contact, such as touching their hands, hair, face or legs, and 13% have been seen impose contact on a genital or erogenous zone such as a hand on the buttocks, a forced hug or a stolen kiss.
- Finally, psychological harassment for sexual purposes concerns a significant number of women.
Thus, 15% of the women interviewed were invited to places or schedules potentially putting them in compromising situations (eg professional meeting in a hotel, dinner at a restaurant …); 10% were offered embarrassing gifts (perfumes, flowers, jewelery, underclothes …) despite their lack of consent; 8% were pressured to obtain an act of a sexual nature (eg sex in exchange for hiring or promotion).
Source: Ifop study for VieHealthy.com conducted by self-administered questionnaire online from 26 to 29 January 2018 among a sample of 2,008 women, representative of the female population residing in metropolitan France aged 15 years and over .
- What is the definition of sexual harassment?
The Penal Code defines sexual harassment as ” the imposition of repeated sexual remarks or behavior on a person that is offensive to his or her dignity because of their degrading or humiliating character or is created against them. an intimidating, hostile or offensive situation.
Sexual harassment refers to the fact, even if not repeated, of using any form of serious pressure for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party “.
- What are the criminal penalties punishing this crime?
Article 222-33 of the Penal Code :
The acts of harassment are punishable by two years’ imprisonment and a fine of € 30,000.
These penalties are increased to three years’ imprisonment and a fine of € 45,000 when the facts are committed:
1. By a person who abuses the authority conferred upon him by his functions;
2. On a minor of fifteen years;
3 ° On a person whose particular vulnerability, due to age, illness, infirmity, physical or mental disability or a state of pregnancy, is apparent or known to the perpetrator;
4. On a person whose particular vulnerability or dependence resulting from the precariousness of his economic or social situation is apparent or known to the author;
5 ° By several persons acting as author or accomplice.
- Can the perpetrator of sexual harassment be exonerated by claiming to have been unaware of imposing acts that he imposed on victims?
In answer to this question, the Criminal Division replies in the negative: once an employee has imposed repeated sexual remarks or behaviors on colleagues that create a hostile environment, it does not matter whether he states that he has underestimated the scope of his actions, their repetition and insistence, despite the employees’ refusal to yield to his advances, demonstrated that he had acted “knowingly” (Cass, November 18, 2015, No. 14-85591).
- The Labor Code contains specific provisions for sexual harassment:
Article L1153-1 states:
No employee should suffer facts:
1 ° Sexual harassment, consisting of repeated sexual remarks or behaviors that are offensive to one’s dignity because of their degrading or humiliating character, or create against him a intimidating, hostile or offensive situation;
2 ° Or assimilated to sexual harassment, consisting of any form of serious pressure, even if not repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party.
A single fact may suffice to characterize sexual harassment (Cass, May 17, 2017 No. 15-19300). In this case, the president of an association had “advised” the employee who complained of sunburns to “sleep with him in his room”, “which would allow him to do him good”.
- What should the employer’s response to sexual harassment be?
The employer must take all necessary measures to prevent, stop and punish sexual harassment ( Article L1153-5 ).
It has been held that the employer breaches this legal obligation since he has not implemented training and information measures to prevent the occurrence of acts of sexual harassment, and that he does not has not taken all appropriate measures to put an end to the facts complained of. He must justify both of these conditions in order to be exonerated from any liability (Cass.soc., Dec. 13, 2017, No. 16-14999).
Let’s not forget the role of staff representatives : the Labor Code specifies that they must immediately seize the employer if they find evidence of sexual harassment ( Article L2312-59 of the Labor Code ).
Employees also have an obligation to take care of the health and safety of their colleagues (Article L4122-1) and must not remain inactive if they find evidence of sexual harassment. Remember that employees who testify to sexual harassment are protected : ” No employee, no person in training or traineeship can be sanctioned, dismissed or subject to a discriminatory measure for having testified to facts of sexual harassment. sexual harassment or to have related them “( article L1153-3 of the labor code ).
- What should be the disciplinary sanction applied to the perpetrator of sexual harassment?
For example, can one “be content” to sanction the author of sexual harassment with a warning, or a disciplinary dismissal?
In terms of moral harassment, the Court of Cassation stated that the obligation of the employer to take all the necessary measures to prevent or stop acts of moral harassment “does not in itself imply the dismissal for serious misconduct “of the employee who is the author (Cass., October 22, 2014 n ° 13-18862).
But in terms of sexual harassment, the Court of Cassation is much more uncompromising and holds in principle serious misconduct, the facts of sexual harassment making it impossible to maintain the employee in the company , which is precisely the definition of serious misconduct ( Company 14 September 2016, No. 15-14630, see also company notice March 5, 2002 No. 00-40717, Cass.Society February 18, 2014 No. 12-17557).
Thus, as soon as sexual harassment is proven, dismissal for serious misconduct appears to be necessary.
- What compensation for the victims?
The employee who is the victim of sexual harassment is entitled to claim compensation for the physical and moral injury he has suffered; Sexual harassment can cause profound distress and impaired health, as well as the disruption of the work of the victim.
The victim employee may also seek compensation resulting from the employer’s failure to prevent such acts (Cass, 17 May 2017, No. 15-19300).