The #MeToo movement has led to worldwide political debate on how sexual harassment can be prevented. As a result of this debate the Danish Parliament recently passed an amendment to the Danish Act on Equal Treatment of Men and Women, setting the scene for changes to the Danish courts’ assessment of cases of sexual harassment in the workplace.
The amendment has been welcomed in different ways by the employee and employer organisations in the Danish labour market. On the one hand, these organisations generally welcome the increased focus on the subject but, on the other hand, they have expressed doubts about the effectiveness of the amendment. Further, the employers’ organisations are generally critical of Parliament’s interference in workplace communication.
‘We are all responsible for putting an end to sexual harassment.’ That was how the Danish Minister for Employment introduced the background to the amendment to the regulation on sexual harassment in a press release published shortly after the introduction of the proposed (and now enacted) Bill.
Firstly, the Bill specifies that employers’ obligation to provide equal employment terms for men and women also includes a prohibition on sexual harassment. The purpose of this part of the amendment is mainly to set out the prohibition on sexual harassment that was already laid down in the Danish Act on Equal Treatment of Men and Women.
The Act contains the following definition of ‘sexual harassment’:
‘Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature in relation to a person’s gender with the purpose or effect of violating the person’s dignity, primarily by creating an intimidating, hostile, degrading, humiliating or offensive environment.’
This definition has given rise to discussions in Danish case law regarding the question of what ‘unwanted’ and ‘with the purpose or effect of violating…’ mean. Danish case law provides a number of examples of sexual harassment claims where the general workplace culture has affected the decision of whether particular behaviour constitutes sexual harassment. Several judgments show that the courts have taken into account the fact that the workplace culture involves casual, informal or bantering communication and, accordingly, have ruled that as a result of the general workplace culture,a particular type of behaviour did not constitute sexual harassment.
By way of example, in 2003 the Danish Eastern High Court ruled that the prohibition on sexual harassment had not been breached in a situation where a female employee at a bakery had been confronted with a loaf of bread shaped like a penis and various jokes involving sexual content by her male colleagues. The Court attached importance to the general tone of communication in the workplace and considered that due to the general workplace communication that was casual, informal and bantering the events would not be considered offensive ‘enough’ to give the employee reason to feel sexually harassed. Another example is a decision from 2006 where the Danish Vocational Training and Education Dispute Board (‘Tvistighedsnævnet’) ruled that a male employer’s reference to a female trainee as his ‘sucking girl’ and his showing the trainee pornographic pictures on a computer did not constitute sexual harassment because of, among other things, the informal and bantering workplace culture.
A new direction
According to the explanatory notes to the enacted Bill, the Danish Parliament takes a stern view of breaches of the prohibition on sexual harassment and breaks with the tradition of attaching importance to the tone of communication normally used at the workplace. The explanatory notes states that the amendment of the Act is intended to specify that ‘casual’, ‘informal’ or ‘bantering’ workplace behaviour or language does not mean that employees must generally put up with offensive behaviour or language.
The explanatory notes explain that the tone of communication or conduct at the workplace was not chosen by the individual employee. For this reason, tone or conduct should not form part of the assessment of whether the prohibition on sexual harassment has been violated. This means that in the future, the courts must take into account the nature of the event(s) and assess whether particular behaviour or communication would have been regarded as unacceptable at a workplace with a ‘more professional or restrictive tone of communication’.
The Danish Confederation of Employers has expressed concerns regarding the issue of whether this change involves the application of a common standard tone of communication in all workplaces in relation to all situations:
‘The tone of communication should be assessed in light of the context and the specific situation at the business in question.’
Several employers’ organisations agree with this opinion and have pointed out that the courts should still take into account if a particular behaviour could subjectively be regarded as ‘unwanted’ or ‘offensive’.
Finally, wording has been added to the Danish Act on Equal Treatment of Men and Women to specify that when determining the compensation level under the Act, the fact that the violation of the Act constitutes a breach of the prohibition on sexual harassment may be taken into account. It is stated in the explanatory notes to the Bill that the purpose of this amendment is to increase the compensation award level in cases concerning sexual harassment by, as a starting point, approximately 30% compared with the current level (which is estimated at approx. DKK 23,700, equivalent to EUR 3,175).
Some organisations have expressed doubts about the effectiveness of increased compensation in preventing sexual harassment in the workplace. For example, the Danish Employers’ Association for the Financial Sector has stated that fundamentally, preventing sexual harassment is about workplace culture and having clear internal rules on the issue, and not about the level of damages. The United Federation of Danish Workers (‘3F’) agrees with this opinion but at the same time has criticised the fact that the amendment of the Danish Act on Equal Treatment of Men and Women lacks an obligation for employers to take active steps to prevent sexual harassment in the workplace.
The amendment of the Danish Act on Equal Treatment of Men and Women came into effect on 1 January 2019.
Norrbom Vinding comment
It is clear that the global focus on sexual harassment has shifted the boundaries in Denmark for when a particular behaviour constitutes sexual harassment. The Danish Parliament has now made it clear that the direction of this assessment has changed and that in the future the determining factor should be more objective when deciding when a certain behaviour “crosses the line”. This contrasts with the previous understanding of what constitutes sexual harassment, which was based on a more subjective assessment, incorporating the general workplace culture in question.
These developments call for employers to take active steps in order to prevent sexual harassment in the workplace. Norrbom Vinding recommends that internal policies and guidelines be given a ‘service check’ to ensure they meet the need for a specific focus on sexual harassment. Further, it is recommended that employers give attention to the tone of communication used at the workplace and consider if there is a risk that some employees do not feel comfortable. If so, action may be advisable to effect a change in workplace communication.