SEXUAL HARASSMENT AND POLISH LABOUR LAW
Article 18 (3a) of the Polish Labour Code prohibits discrimination against an employee in the workplace on the grounds of gender and sexual orientation. Discrimination also includes sexual harassment, understood by the Labour Code as any undesirable behaviour of a sexual nature or relating to the sex of an employee, the purpose or effect of which is to violate the dignity of the employee, in particular to create an intimidating, hostile, degrading, humiliating or derogatory atmosphere. This behavior can consist of physical, verbal, or non-verbal elements.
WHAT BEHAVIORS CONSTITUTE SEXUAL HARASSMENT
As can be seen from the above definition, sexual harassment is any unwanted conduct of a sexual nature or relating to the sex of an employee, the purpose or effect of which is to violate the dignity of the employee, which means that seemingly innocent comments, messages or gestures that would not constitute harassment in the event that the addressee reciprocated interest in the author also fall under this definition. According to the case-law, the fundamental characteristic of sexual harassment lies in the fact that it is perceived as undesirable by the person (male or female) who is the object of such conduct. Sexual interest becomes sexual harassment when the person who is the object of such interest clearly shows that they find it offensive. Any unacceptable behavior with a sexual background or connotation can be classified as a case of sexual harassment. It is irrelevant for the legal classification whether a particular act is an isolated incident or one of many acts of conduct towards the same person.
The Polish Supreme Court in case II PK 229/17 stated that: ‘there does not have to be physical contact with a victim of sexual harassment for the perpetrator’s conduct to be classified as sexual harassment. Such harassment may take a verbal form and include only verbal elements (e.g. comments or remarks relating to the sexual sphere). They can also be non-verbal behaviours, but not related to physical contact with the harassed person’s body (e.g. showing sexually suggestive images, displaying sexually explicit objects, suggestive looks). The literature on this issue aptly points out that sexual conduct is treated as sexual conduct in the light of various national definitions, m.in: “abusive flirting”, “making proposals, soliciting or asking for sexual benefits”, “inducing sexual pressure”, “making suggestive remarks and lewd allusions”, “offensive comments on appearance or clothing”, “telling sexual jokes”, “sexual blackmail”.
OBJECTION FROM A VICTIM OF HARASSMENT IS NEEDED
In the above-mentioned judgment of the Supreme Court, it was also pointed out that: “the criterion that is essential for assessing whether sexual conduct is sexual harassment is the fact that the conduct is intended to be undesirable by the employee. Therefore, it is crucial to determine whether the employee did not want a certain type of behaviour on the part of another employee, employer or third party. He must therefore express this in a situation where such conduct concerns him and is not desired by him. The objection should be filed in such a way that the perpetrator can realize that his or her behavior is undesirable by the employee. The mere submission of a sexually suggestive proposal (or similar type of behaviour) does not have to be dictated by the intention to humiliate the employee or force him or her to participate in certain activities (however, it may be assessed negatively from the perspective of the culture of a given organisation and the standards functioning within it). However, if the perpetrator’s behavior is disaccepted by the employee and continues to do so, this will be grounds for concluding that the employee has been sexually harassed. The legislator does not specify the form in which the employee should express his or her objection. Therefore, it can be assumed that it can be any form of the employee’s behaviour indicating that he or she does not wish to be the recipient of specific behaviour. It should be noted that in certain circumstances it may be problematic to express such an objection directly, especially when the perpetrator is the employee’s supervisor or another person representing the employer. The average employee is usually not interested in conflicting with the employer and may therefore be concerned about the possible consequences of expressing an objection to the attitude of the supervisor (or another person acting on behalf of the employer).
The determination of whether the perpetrator’s conduct was undesirable by the employee should therefore be made on the basis of the totality of the circumstances. A form of protest may be, for example, avoiding contact with the perpetrator. Sexual harassment is behavior that is perceived by an employee as intrusive and therefore not reciprocated. Therefore, such an attitude of the employee, which consists in not reciprocating the perpetrator’s behaviour, should be a signal to the latter that the employee does not want such behaviour and should be stopped.”
WHAT ARE THE EMPLOYER’S RESPONSIBILITIES
It is usually not possible for an employer to guarantee that there will be no cases of sexual harassment in their workplace, but they are obliged to actively prevent such cases and conduct an investigation in the event of reporting cases of sexual harassment.
Counteracting sexual harassment may in particular take the form of training for employees informing them about the dangers and consequences of sexual harassment or the form of procedures that will enable the detection and termination of this phenomenon, e.g. implementation and publication of the Code of Conduct for Employees and the Rules for counteracting misconduct. The choice of appropriate measures depends on the specific employer, the type of working environment, the nature and number of interactions between employees.
SEXUAL HARASSMENT COMPENSATION
In the case of sexual harassment, the employee may seek compensation in court under Article 18 (3d) of the Labour Code. The law does not provide for an upper limit on compensation.
The employee also has the opportunity to use the assistance of the National Labour Inspectorate – a body that supervises the correct application of the Labour Code by the employer.
In extreme cases, it may be justified to notify the Police. In accordance with Art. 199 of the Polish Criminal Code whoever, by abusing a relationship of dependence, causes another person to engage in sexual intercourse or to undergo another sexual act or to perform such an act shall be punished with imprisonment for up to 3 years. It is also possible to classify the perpetrator’s behaviour as a different type of a sexual offence.
SEXUAL HARASSMENT AND FLIRTING IN THE WORKPLACE
Of course, it should be clarified that sexual harassment, for which an employer could be liable, does not occur if the conduct of a sexual innuendo or sexual nature took place with the consent of all the people involved and was the result of their intimacy (flirting, relationships). However, employers can and should introduce standards in the workplace according to which employees are expected to treat each other with respect and avoid all sexually suggestive behaviours in the workplace.