In its 4th December edition, “Diario del Derecho”, a very useful Spanish electronic publication (www.iustel.com/diario_del_derecho), reports that the country’s Supreme Court has just issued a curious decision, not yet published, on the scope of the concept of sexual harassment.
Knowing that the Portuguese law is particularly insufficient in this area, even though it is based on valuations that are, after all, universal, the conceptual developments taking place in other jurisdictions are certainly of interest.
The judgment introduces the idea of “implicit” sexual harassment, and the notion of harassment cannot be limited to physical contact or verbal proposals from the perpetrator. This idea highlights the inadequacy of the definition contained in Article 29(3) of the Labor Code (which is identical to Article 7/1 of Organic Law 3/2007, in force in Spain) when it refers to “behavior… of a sexual nature” as the core of sexual harassment.
In reality, the harasser’s objective is sexual, but the means used may not be, and are not usually, “explicit”, in the sense that they consist of words alluding to sexual activity or gestures that directly seek to establish it. The doctrine of the Spanish Supreme Court simply consolidates, in legal terms, a clear understanding of the phenomenon.
The case addressed in the ruling concerns relations between a doctor and a female doctor at a university hospital. The former never approached her physically, nor did he expressly propose sexual relations, but over the course of two years he showed his colleague (who was also his subordinate) a series of gestures and courtesies – calling her into his office for non-professional reasons, treating her differently from other people in the same department – which led her to complain to his hierarchy about these “constant unsolicited displays of attention”.
The doctor was suspended for six months and appealed against the decision.
Both the Madrid High Court and the Supreme Court considered that “the appellant’s conduct was based on libido, lasted for two years and did not receive any kind of reception from the victim, who was also his subordinate”, classifying this conduct as a “very serious offence of sexual harassment” and considering the sanction to be adjusted.
It will be interesting to verify, in the light of the text of the judgment, on what evidential basis it was possible to conclude that the conduct in question was “guided by libido”…
For our part, we wonder if there aren’t sufficient and even glaring reasons for the normative definition of sexual harassment (unfortunately rooted in European law) to be boldly revised in the light of reality.
António Monteiro Fernandes @ Of Counsel, DCM | Littler