Unfortunately, the issue seems more current than ever. That’s why it seems appropriate to bring up another case of sexual harassment at work, also in Spain.
The case in question took place in August 2022, when an employee who worked in a restaurant brought an action against her hierarchical superior after repeated emotional and physical attempts by him to have an unwanted sexual relationship.
The court, faced with this situation, developed the concept and requirements of sexual harassment and, in favor of the plaintiff, invoked Spanish and European legislation. Let’s take a look at the most important ones.
It began by defining harassment on the basis of Directive 2006/54/EC as: “(…) unwanted conduct related to a person’s sex which has the purpose or effect of violating that person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Sexual harassment, on the other hand, occurs whenever “unwanted verbal, non-verbal or physical behavior of a sexual nature occurs, with the aim or effect of violating a person’s dignity, in particular by creating an intimidating, hostile, degrading, humiliating or offensive environment”.
In Spanish law, “sexual harassment is any verbal or physical behavior of a sexual nature that has the purpose or effect of violating a person’s dignity, particularly when it creates an intimidating, degrading or offensive environment”.
Based on these definitions and also taking into account the judgment handed down on January 30, 2018, by the Superior Court of Justice of Catalonia No. 620/2018, the four requirements for a situation of sexual harassment were explained:
I) Existence of verbal, non-verbal and physical behavior:
Respectively, all those expressed in intelligible language, placing cameras or leaving pornographic posters or objects in a place visible to the victim.
II) The sexual nature of behavior:
Respectively, all those expressed in intelligible language, placing cameras or leaving pornographic posters or objects in a place visible to the victim;
III) The purpose or effect of violating a person’s dignity by creating an intimidating, hostile, degrading, humiliating or offensive environment.
In this sense, we can distinguish between voluntary sexual harassment, where the purpose is to attack the victim’s dignity, which is determined by the harasser’s knowledge that the conduct is unwanted, and involuntary sexual harassment, where the effect is to attack dignity, even if this is not the subject’s objective.
Finally, it is worth noting one of the biggest problems associated with sexual harassment: sexual harassment on the grounds of sex, a problem already highlighted and transcribed by the judgment of the High Court of Las Palmas de Gran Canaria of February 10, 2021, no. 138/2021: Sexual and gender-based harassment in the workplace has an unquestionable impact on gender, statistically affecting more female workers than their male colleagues. As stated in the recent study promoted by the Spanish Government’s Ministry of Equality (…) through interviews with 48,000 women in the 28 EU countries, it concludes that sexual harassment is a widespread and common experience for many women in the EU and that one in five women have been subjected to touching, hugging or kissing against their will since the age of 15.
And the question that will remain as long as decisions like these are studied will be: how long will this type of situation continue
Maria Beatriz Silva @ DCM| Littler
