Sexual Harassment in the Workplace: The Present Day Challenge

Introduction  

In an ever changing world, where nations are undertaking legal measures , so as to encourage employers to develop new and innovative approaches in order to create safer and healthier working environments, there still seems to be room for improvement, especially concerning sexual harassment, a growing concern of the last decade.  Sexual harassment, a form of sex-based discrimination, unfortunately, is common workplace misconduct. Even though this phenomenon has existed as far as work relations date, the legal measures taken in order to fight it can only be defined as “too little, too late”. Therefore, I’d like to focus on the latest legal measures taken by ILO (International Labor Organization), the European Union and the Albanian legislation’s standpoint in comparison to these measures.

International and European Legal Framework

In compliance with Article 2 of 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” sexual harassment can be defined as “any form of unwanted verbal, non-verbal or physical conduct of sexual nature occurs, with a purpose or effect of violating the dignity of a person, in particular when creating and intimidating, hostile, degrading, humiliating or offensive environment”.
Sexual harassment usually occurs by taking two main forms[1], one of them being “quid pro quo” and the other being the development of a hostile workplace environment. The “quid pro quo” form can be defined as conditioning certain job benefits, such as a pay rise, on the demands of engaging in various forms of sexual behavior with the person in charge. On the other hand, the other form of sexual harassment implies that the person in authority continuously engages in humiliating, hostile or even intimidating behaviors of a sexual nature towards the victim.
From a statistical point of view, women have always been more prone to fall victims to such behavior than men, although in certain European states the difference appears to be relatively small.[2]

In light of the recent developments regarding sexual harassment around the globe, especially the “Me Too” movement, there seemed to be an imperative need for legal measures of a larger scale. In June 2019 The International Labor Organization (ILO) adopted Convention C190 on “Violence and Harassment”, accompanied by the Recommendation 160/2019.

On the preamble of the Convention there’s one particular sentence that stands out: “Recognizing that violence and harassment also affects the quality of public and private services, and may prevent persons, particularly women, from accessing, and remaining and advancing in the labor market” admitting that women are indeed more affected by sexual harassment in the workplace than men.
The Convention is especially keen on encouraging the states to take appropriate measures in order to establish a clear national legal framework take effective remedies and ensure administrative support measures for the victims, witnesses and whistle-blowers.

Regardless of the aforementioned legal initiatives, the latest surveys conducted on the matter report concerning numbers of women who have experienced sexual harassment firsthand. According to a recent study[3] conducted by The French Institute for Public Opinion for Foundation Jean Jaurès and FEPS (Foundation for European Progressive Studies), six out of ten women in Europe have been victims of sexual harassment or sexist treatment during their careers. The numbers are especially high in countries such as Spain (66%) and Germany (68%). Despite the high numbers, the study resides in the fact that poor reporting is one of the main problems that European countries are facing when it comes to this matter. Unfortunately, the majority of the victims have chosen resignation instead of reporting or denouncing their abusers.

Based on these findings, women across EU have engaged in finding ways to make their voices heard, one of them being the “Me Too European Parliament Movement”, which describes itself as a “group of workers of the European Parliament working in the political or the administrative field, who believe that the institution must hold exemplary standards of good employment and citizenship and thus contribute to the fight against sexual harassment.” Their requests focus on three main aspects[4], specifically: a mandatory training warning against sexual and moral harassment for all employees including persons on high positions, the constitution of a trustable and independent anti-harassment committee composed of doctors to provide an appropriate medical support to the victims when a case is declared and most importantly, for bigger companies and organizations the constitution of a task-force of independent experts who would check regularly through an external audit, how cases of harassment are being dealt.

Albanian Legislation on Sexual Harassment in the Workplace 

In view of the legal developments around the world, changes and improvements have been made to the Albanian legislation as well. Starting from 2015, the Albanian Labor Code has included the notion of sexual harassment in the work place as “every unwanted form of behavior expressed by words or physical/symbolic actions of a sexual nature, which claim to damage the employee’s personal dignity, especially when it creates a threatening, hostile, degrading, insulting work environment, and it’s committed by the employer against an employee, employ seeker, or in between employers”^[5]. It has also included provisions regarding the support and protection of the victims and whistle-blowers, specifically article 32/6 which states: “the employee that claims to have been harassed in one of the ways provided for in this disposition or the whistle-blower, should not suffer any penalties for this reason, lose his job, or be subjected to any further discrimination by being a victim of harassment, because of this matter”. Moreover, it provides that the burden of proof in such cases falls upon the employer, as a way to further protect the rights and interests of the employee.
Also, regarding gender issues in general and sexual harassment in particular, Law no. 9970, dated 24.07.2008 “On Gender Equality” is one of the main legal measures that our country possesses in order to guarantee fair and equal working conditions for every employee regardless of gender. Specifically, Article 4/10 provides a definition on sexual harassment in the workplace in full compliance with EU-Directive 2006/54/EC.

At present, our national legislation possesses a series of legal measures in order to fight sexual harassment in the workplace. Regardless, no legal measure can come to the aid of the employees if it is not implemented effectively. Therefore, the question arises, are these legal provisions being, in fact, successfully implemented? And if not, what can we do, as citizens and as young professionals to help improve the current situation?

The scarcity of studies on the matter makes it difficult to fully grasp the situation in the Albanian work industry. The latest survey[6]conducted by the Ombudsman’s office on sexual harassment in the workplace, has a narrow scope that solely includes the Albanian public administration’s employees. Nonetheless, the findings of this survey are valuable in order to understand the mindset and the level of perception of both the employers and employees. Also, at the same time, highlight the need for further studies, informative campaigns and training on the matter.  According to the statistics, 87.5% of the employees of the Albanian public administration are aware that there exists a difference between moral and sexual harassment, with only a mere 10% admitting that there is none. On the other hand only 12.5% of the employees admit the need for further debate, training and awareness raising on the matter and 47.5% reporting that the situation is not problematic at all and there is no need whatsoever for further measures.
The statistic that I find the most concerning is the one conducted on the reasons why employees do not denounce cases of sexual harassment. The main reason, as stated by 27.5% of the participants, is the fact that there would be grave consequences for their families. The lack of faith in the public institutions is the second main reason, with 20% of the participants admitting to it.

The fact that employees state that they possess a clear understanding of the notion of sexual harassment and there is no need for further measures, but at the same time admit that their families and the lack of faith in the public institutions hold them back from denouncing their abusers, is quite concerning and it is the public institutions’ duty to ensure that every victim will be heard and every abuser will be held accountable through transparent and fair administrative processes. Employees must be continuously encouraged by the public institutions in general and by their employers in particular, to denounce without any shade of fear or hesitation every person who abuses their position of power by means of sexual harassment.

Conclusion

In conclusion, sexual harassment presents itself as a difficult challenge that continues to haunt the work industry. The occurrence and damage caused by this concerning phenomenon can only be reduced by effective prevention and correction mechanisms. It most certainly is the employers’ and legislators’ responsibility to not only enhance the existing measures, but also to develop new strategies and find ways to provide a safe and healthy working environment for each and every employee.

 

References

[1]Declaration on Fundamental Principles and Rights at Work: Sexual Harassment at Work, International Labor Office.
https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_fs_96_en.pdf

[2] Helge Hoel, Maarit Vartia, “Bullying and Sexual Harassment at the workplace, in public spaces, and in political life in the EU”, a study for the FEMM Committee, March 2018.
https://www.europarl.europa.eu/RegData/etudes/STUD/2018/604949/IPOL_STU(2018)604949_EN.pdf

[3] Raport by Ifop for Fondation Jean Jaurès and FEPS (Foundation for European Progressive Studies) “European Observatory on sexism and sexual harassment at work”, October 2019.
https://www.feps-europe.eu/attachments/publications/116268_rapport_feps-fjj_uk.pdf

[4] “Me Too EP”, Testimonies of Survivers of Sexual Violence.
https://metooep.com/

^[5] Article 32 point 3 of the Law no. 7961 date 12.07.1995 “The Labor Code of the Republic of Albania”

[6] “Moral and sexual harassment in the Albanian public administration: A comparative analysis of the Albanian and European institutional legal framework”, a study conducted by the Ombudsman’s Office in cooperation with The Danish Neighborhood Program, Tirana, February 2017.