Exposure of Woman Workers to Violence and Sexual Harassment at Workplace (Slovak and Czech Experience) Seminar on Protection of Women Workers and Gender.

Exposure of Woman Workers to Violence and Sexual Harassment at Workplace(Slovak and Czech Experience)

Seminar on Protection of Women Workers and Gender Equality

Ankara 2 -3 June 2008

JUDr. Zuzana Magurová, Institute of State and Law Slovak Academy of Sciences, Bratislava, Slovakia

JUDr. Zuzana Magurová, Institute of State and Law SAS, Bratislava, Slovakia Exposure of Woman Workers to Violence and Sexual Harassment at Workplace

(Slovak and Czech Experience)

Sexual harassment

• gender inequality at workplace• SH at workplace – serious attention by EU policymakers

since the mid-1980s • both women and men are victims, but usually it is men

who harass women • instrument of masculine power and dominance• form of infringement of human rights



• Initiatives to prevent and to combat sexual harassment at work:

• the European Parliament Resolution of 1986 on violence against women;• Rubenstein, M. 1987 The dignity of women at work. A report of the problem of sexual harassment in the Member

States of the European Community• the 1990 Council resolution on the protection of the dignity of women and men at work;• the 1991 Commission recommendation on protecting the dignity of women and men at work with its annexed

Code of Practice;• the 1991 Council Declaration on the implementation of the Commission's recommendation and Code of Practice;• the 1993 Guide to implementing the Commission's Code of Practice;• The European Parliament Resolution of 1994 on a new post of a confidential counsellor at the workplace;• 3rd Action Programme for equal opportunities for women and men for the period of years 1991 to 1995• the fourth medium-term action programme for equal opportunities for men and women (1996-2000) adopted by

the Council on 22 December 1995 which emphasises the need for decisive action to combat sexual harassment;• a consultation of management and labour on the prevention of sexual harassment at work, July 1996.• Sexual Harassment in the Workplace in the European Union, 1998• Sexual Harassment in the workplace in EUMember States,June 2004


(Slovakia an Czech Experience)

The treaties on the foundation of three European Communities have not explicitly regulated the protection of human rights and fundamental freedoms, because the Council of Europe operated in this area at the time of their establishment.

Equal treatment in the EC Treaty • Article 2 „ promotion of equality between men and women is a task of the EC“.

• Article 3(2) „it should aim to eliminate inequalities, and to promote equality, between men and women in all its activities (also known as "gender mainstreaming").

• Three legal bases in the EC Treaty for EU legislation on equal treatment of men and women:

• Article 141 in matters of employment and occupation;

• (1) equal pay for male and female workers for equal work or work of equal value

• (3) equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value

• Article 13(1) outside of the employment field;

• “appropriate action to combat discrimination based on sex”

• Article 137 in the promotion of employment, improved living and working conditions.

• “equality between men and women with regard to labour market opportunities and treatment at work”

http://ec.europa.eu/employment_social/gender_equality/legislation/ectreaty_en.html



• Directives

• Equal pay: Article 141, Council Directive 75/117/EEC on the approximation of the laws of the MS relating to the application of the principle of equal pay for men and women

• Equal treatment: Article 141, Council Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment, Directive 86/613/EEC on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood, Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)




• Directives

• Social security: Council Directive 96/97/EC amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes, Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security

• Burden of proof

• Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex




• Other legal acts

• Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work

• Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, including the code of practice to combat sexual harassment (92/131/EEC)

• Council declaration of 19 December 1991 on the implementation of the Commission Recommendation on the protection of the dignity of women and men at work

• Council Recommendation of 13 December 1984 on the promotion of positive action for women 84/635/EEC




• Commission Recommendation on the protection of the dignity of women and men at work (92/131/EEC) including

• Commission's code of practice on the protection of the dignity of women and men at work

• DEFINITION - sexual harassment – means

unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work, including the conduct of superiors and colleagues, is unacceptable and may, in certain circumstances, be contrary to the principle of equal treatment

conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work, including conduct of superiors and colleagues, is unacceptable if:

(a) such conduct is unwanted, unreasonable and offensive to the recipient;

(b) a person's rejection of, or submission to, such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions; and/or

(c) such conduct creates an intimidating, hostile or humiliating work environment for the recipient;



• Commission's code of practice on the protection of the dignity of women and men at work

• THE LAW AND EMPLOYERS' RESPONSIBILITIES• COLLECTIVE BARGAINING• RECOMMENDATIONS TO EMPLOYERS

A. Prevention

B. Procedures• RECOMMENDATIONS TO TRADE UNIONS• EMPLOYEES' RESPONSIBILITIES

sexual harassment

unwanted by the recipient

• that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive

• sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious

• it is the unwanted nature of the conduct that distinguishes sexual harassment from friendly behaviour, which is welcome and mutual

sexual harassment

• two forms

quid pro quo harassment

• (1) job benefits, including employment, promotion, salary increases, shift or work assignments, performance expectations and other conditions of employment, are made contingent on the provision of sexual favors, usually to an employer, supervisor or agent of the employer who has the authority to make decisions about employment actions, or

• (2) the rejection of a sexual advance or request for sexual favors results in a tangible employment detriment, a loss of a job benefit of the kind described above.

hostile or abusive work environment

• display of pornographic pictures or cartoons, touching and grabbing, sexual remarks or jokes and the physical interference with movement



• Other legal acts

• Council Recommendation of 13 December 1984 on the promotion of positive action for women 84/635/EEC :

• to adopt a policy of positive action in their national policies and practices to eliminate existing inequalities against women in working life and to promote a better balance between the sexes in employment.

• to take steps to ensure that positive action includes as far as possible actions having a bearing on the following aspects

• - respect for the dignity of women at the workplace,


Council Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the

principle of equal treatment

Five important tasks are accomplished by the Directive:

• sexual harassment is defined as a form of sex discrimination

• MS are required to erect national bodies for the enforcement of equal opportunities

• excluding women from certain jobs on the basis of their gender requires justification

• certain special protections are to be afforded women during and after pregnancy;

• it implements Article 141, paragraph 4, of the Treaty of Amsterdam calling on MS to adopt measures promoting equality of men and women, and to report on the positive actions taken to implement this principle.

Council Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the

principle of equal treatment

• Harassment related to the sex of a person and sexual harassment are contrary to the principle of equal treatment between women and men;

• it is therefore appropriate to define such concepts and to prohibit such forms of discrimination

• it must be emphasized that these forms of discrimination occur not only in the workplace, but also in the context of access to employment and vocational training, during employment and occupation.

• Definitions• harassment: where an unwanted conduct related to the sex of a person occurs with

the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment,

• sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature 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.

EU Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

(re-cast version)

• Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties.

• ‘harassment’: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment; (Article 2/1/c)

• ‘sexual harassment’: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature 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; (Article 2/1/d)

Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex

Burden of proof

• an inference of discrimination is drawn if the respondent fails to produce evidence that satisfies the court or other competent authority that there has been no breach of the principle of equal treatment;

• plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory;

• MS shall take such measures to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment

Situation in the Slovak Republic and the Czech Republic

• Czechoslovakia from 1918 until 1992Czech and Slovak Federative Republik on January 1st 1993 peacefully split into

• Slovak Republik• Czech Republic• both countries have the same legislation

including the Labour Code, Employment Act, Wages Act and others, that started to differentiate as a result of the amendment of the individual acts or the enactment of new codes

e.g. Labour Code – in 2001 in Slovakia

in 2006 in the Czech Republic.

Situation in the Slovak Republic and the Czech Republic

• MS of EU - 1 May 2004

• during the accession process a part of the European antidiscrimination legislation, including the prohibition of discrimination, gradually became a part of the labour legislation

• important milestone - Harmonization Amendment to the Labour Code in Slovakia in 2003 and in the Czech Republic in 2004.

• the Labour Codes - approximately identical stipulation of the prohibition of direct or indirect discrimination based on the sex, marital status, race, colour, language, age, health condition, confession and religion, political or other belief, trade-union activity, national or social origin, nationality or ethnicity, property, gender or other status

• women and men have the right to equal treatment, as regards the access to employment, remuneration and career, professional education and working conditions, that the employers must not disadvantage and damage their employees because they exercise their rights resulting from the employment relationship

• process of adoption of the Antidiscrimination Act was very complicated and lengthy

• the adoption of the legislation relating to the sexual harassment was rather regarded as a necessary evil, which required the harmonization process, or as something redundant

Transposition of the European antidiscrimantion legislation

SK• Part of the European

antidiscrimantion legislation transposed to

Labour Code Employment Act Services Act, ect.

• transposition completed – Anti-discrimination Act

adopted in 2004

CZ• Part of the European

antidiscrimantion legislation transposed to

Labour Code Employment Act Services Act, ect

• Anti-discrimination Act

not adopted yet

Legal regulation of sexual harassment

SK

Anti-discrimination Act

as amended – Act No 85/2008 Coll.

effective 1 April 2008

CZ• Labour Code as

amended

Act No 46/2004 Coll.

effective 1 March 2004• Employment Act

Act No 435/2004 Coll.

effective 1 October 2004• Anti-discrimination Act

not adopted yet

Legal regulation of sexual harassment in the Czech Republic

• Unlike Slovakia, the Czech Republic has regulated sexual harassment in accordance with the directive already in the

old Labour Code Act. No 65/1965 Coll. (ammended by Act No 46/2004 Coll.

effective 1 March 2004• § 2 par. 9) Sexual harassment means any form of sexual behaviour that is rightly

perceived by the affected employee as unwanted, inappropriate or insulting, the purpose or the consequence of which leads to the diminution of the dignity of a physical person or to the creation of hostile, humiliating, or disturbing working environment, or that might be rightly perceived as the condition for a decision that will influence the exercise of rights and obligations arising from labour relations.

Employment Act No 435/2004 Coll. effective 1 October 2004 • § 4 par. 8) Sexual harassment means any form of unwanted (undesirable) oral or

other than oral expression of sexual nature, the purpose or the consequence of which is the diminution of personal dignity, particularly when an intimidating, hostile, humiliating, abasing or offensive environment is created.

Legal regulation of sexual harassment in the Czech Republic

• Antidiscrimination Act (has not been signed yet by the President)

• In § 2 the Act provides that sexual harassment is discrimination,

and subsequently specifies this term in a rather complicated manner. First it defines

the harassment – which means unwanted conduct related to reasons (race, ethnic origin, nationality, sex, sexual orientation, age, handicap, religion, belief or ideology), the purpose or the consequence of which is the diminution of personal dignity and the creation of intimidating, hostile, degrading, humiliating or offensive environment, or that might be rightly perceived as the condition for a decision affecting the exercise of rights and obligations arising from labour relations.

• Sexual harassment means the conduct mentioned above (harassment) of sexual nature.

According to literal construction it applies not only to the reason of sex, but also to the reason of ethnic origin, nationality and other reasons.

Legal regulation of sexual harassment in the Slovak Republic

was incorporated in our legislation only in the year 2008

Anti-discrimination Act No. 365/2004 Coll. effective from 1st July 2004transposed only 3 DirectivesRacial Directive 2000/43/ECFramework Directive 2000/78/EC 86/378 EHS ammended 96/97 ES

does not implement the directive 2002/73/EC, amending the Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women, as regards access to employment, vocational training and promotion, and working conditions

missing the definition of sexual harassment


3 formal notifications - proceedings for the breach of the Treaty Establishing the EC pursuant to Article 226 of this Treaty

• 1. No 2006/2260 of 28.06.2006 - the incomplete or incorrect transposition of the Racial Directive 2000/43/EC

• 2. No 2006/2447 of 20.12.2006 the incomplete or incorrect transposition of the Framework Directive 2000/78/ES

• First amendment – Act No 326/2007 Coll.

• 3. No 2006/2528 of 29.6.2007 the incomplete or incorrect transposition of the Directive 2002/73/EC, amending the Directive 76/207/EEC

• Second amendment - Act No 85/2008 Coll. effective 1 April 2008

• explicit prohibition of sexual harassment


§ 2a par. 5) Antidiscrimination Act as amemded by Act No 85/2008 Coll. effective 1 April 2008

• Sexual harassment is a verbal, non-verbal or physical behaviour of sexual nature, the purpose or the consequence of which is or may be the diminution of personal dignity and that creates an intimidating, degrading, dishonouring, hostile or offensive environment.

definition ids missing adj. unwanted

Shift of burden of proof in Antidiscrimination Act

§ 11(2) The defendant is obliged to prove that he/she has not

breached the principle of equal treatment, if the applicant submits to the court evidence from which it may be reasonably concluded that the principle of equal treatment was breached.

(3) The Civil Procedure Code (CPC) applies to the proceedings in cases of the breach of the principle of equal treatment, unless this Act provides otherwise.

Before the the Antidiscrimination Act according to the Labour Code To facilitate the exercise of the right to equal treatment by an employee the Labour

Code imposed on the employer the obligation to prove that the principle of equal treatment was not breached.

Shift of burden of proof in Civil Procedure Code

SK• is not contained in the Civil

Procedure Code.

• The courts therefore may only adhere to the procedural regulation and circumvent the application of the provision contained in the Antidiscrimination Act. For this reason the

• Czech regulation is better.

CZart.133a Law No. 99/1963 Civil Procedure Code as amended Act no 30/2000 Coll effective since 1st January 2001

Where the facts create a prima facie case of indirect or direct sexual discrimination in employment, s. 133a of this law imposes the burden of proof upon the respondent to prove that there has been no breach of the principle of equal treatment between men and women.

Grounds of the judgmentThe shift of the burden of proof to the defendant is not complete or automatic. A person who claims that he/she is a victim of discrimination first has to submit to the court facts sufficiently justifying the conclusion on the existence of potential discrimination, although it is not sufficiently

Issues of court fees

§ 9 art.2 Antidiscrimination Act On the court can – the person violating the

law be made to• refrain from such conduct• where possible rectify the illegal situation• provide adequate satisfaction• In case that a person claims an adequate satisfaction in monetary terms,

he/she has to pay a court fee. To discouraging the satisfaction has to be high enough. In such cases the court fee is high, too.



CONCLUSION

• the sexual harassment in general was and still is not regarded as a problem

• incorporation of the definition of sexual harassment in the law is only the first step

• the adoption of legislation was not followed by the establishment of control mechanisms

• the absence of gender analyses that would reveal the impact of the prepared legislation on both genders

• women further encounter sexual harassment at work

• The issue of sexual harassment still tends to be disparaged, although the first survey in the Czech Republic (Křížková, A., Čermáková, M., Dudová, R. Maříková, H., Uhdeová, Z: Molestation of Women and Men and Sexual Harassment in the Czech System of Labour Relations. Scope, Forms, Actors, Solution. Sociological Institute of the Academy of Sciences of CR, Gender and Sociology Department, 2005) showed that one quarter of the active population had encountered sexual harassment at work. It also showed that before the definition of sexual harassment in the law some forms of behaviour were depreciated, particularly on the part of the employers or potential initiators of such behaviour.

• The Slovak survey (Holubová, B. Institute for Labour and Family Research „Sexual harassment and bullying of women on the workplace“ , 2007) arrived at similar conclusions.

Exposure of Woman Workers to Violence and Sexual Harassment at Workplace (Slovak and Czech Experience) Seminar on Protection of Women Workers and Gender.

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