Sexual intimidation

Sexual intimidation in the workspace comes in many forms. Examples of such behaviour are sexual comments, disturbing behaviour and harassment.

The case

Although this explanatory case was decided in court under old law (before the enactment of the Work and Security Act), I did want to discuss this judgment because the judge issued a fair compensation on the grounds of the circumstances of the case. This can possibly lead to legal grounds for fair compensation under the new WSA as well.

Non-performance?

The case dealt with an employer who asked the district judge to terminate his secretary’ labour agreement. The employer argues that she did not perform for quite some time, which had been discussed during several performance interviews. Not only did she not show any improvement, she also called in sick and a labour dispute erupted, due to allegations of sexual intimidation on the employers’ side.

Disturbed labour relation

The employee was obligated to wear tight, satin clothing in the office, which she refused after a period in which she did wear this kind of clothing. The employer found this change of attitude strange, because of the fact that the employee never complained before. Furthermore the employer suggested a form of mediation to clear the air between him and the employee, after which he suggested a reasonable offer to end the labour agreement. The employee however did not want to discuss any of these options and accused the employer of sexual intimidation, which led to the disturbed labour relation. He found that it could not be expected of him to keep this situation in place and started legal proceedings.

Undesired attention by the employer

The story of the employee shines a different light on this case. Her side of the story is that the critique on her work performance only had started after her decision to refrain from wearing the tight, satin clothing and high heels. The employer made disturbing comments about this (e.g. he called her his ‘shiny tushy’), touched her ass, arms and legs and hugged her as well. For some time the employee did not dare to say anything about this, because she noticed that the employer became angry when she did not comply and gossiped abouth the behaviour to other employees. The whole situation made her sick, which lead to her absence.

No plan of improvement

The first thing that the district judge noticed in this case was the absence of a plan of improvement from the side of the employer. This is expected when an employer wants to terminate the agreement, based on non-performance. Instead of making such a plan, the employer had let the situation to go on for fifteen months, which led to doubts on the side of the district judge on the non-performance.

A case of sexual intimidation?

The next question which had to be answered by the district judge concerned the potential sexual intimidation. Art. 7:646 paragraph 6 CC not only entails a prohibition of distinction between gender, it also entails a prohibition on (sexual) intimidation. Paragraph 8 describes this as follows: ‘any form of oral, non-oral or physical behaviour with a sexual connotation, which has the goal or result that the dignity of a person has been degraded, in particular when a threatening hostile, insulting, humiliating or hurtful situation is created.’  Paragraph 9 further stipulates that the employer cannot impair the employee who rejects or suffers under such behaviour. Lastly, paragraph 12 offers aid to employees who suffer from this kind of behaviour. The employee only has to bring forward the facts which could lead to sexual intimidation. The employer has to contest such claims in order to prove that he is innocent.

Weighing the evidence

The district judge ruled that the physical crossing of the line (the touching and hugging) could not be proved sufficiently. The employee came forward with statements of witnesses who only heard her side of the story and did not notice this behaviour on their own account. The accusation that she was obliged to wear tight, satin clothing could be proved by other (former) employees. The employer did not contest these claims neither, although he brought forward the fact that the employee did not refused to wear this clothing in the beginning, an argument which was not accepted by the judge. The employee was young and inexperienced, which led to her silence on the matter. The mere fact that she complied in first instance does not constitute her approval. Furthermore other employees knew that the employee was unhappy with the satin clothing and an email conversation between parties showed the disapproval of the employee on the clothing and physical contact.

Fair compensation

The district judge was of the opinion that the relation between parties was disturbed and that they could not work any longer with each other. This was however the fault of the employer and the employee was awarded a fair compensation.

More information

When you, as employee, are confronted with a similar situation and are in need of help: please contact our attorney S.M.E. van Dijsseldonk LLM.