last updated 17 December 2007
The European Union has recently taken concrete steps to address sexual harassment in its Member States. In August 2006, 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 (re-cast version) came into force. In September 2002, the European Parliament and Council adopted Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
Council Directive 76/207/EEC is the foundation of EU law and policy in the area of gender equality in employment. As amended in 2002, the Equal Treatment Directive states that "the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to" conditions for access to employment, vocational guidance and training, employment and working conditions, including dismissal and membership in organizations of workers or employers. In Commission v. United Kingdom, Case 165/82, [1983] ECR 3431, the European Court of Justice held that EU Member States could not exclude certain small businesses from application of the equal treatment principle as does the United States in its legislation prohibiting sex discrimination in employment, Title VII. Please see the section on domestic law and policy for more information on Title VII.
The 2002 amendment to the Equal Treatment Directive, Directive 2002/73/EC, introduces the concepts of harassment related to sex and sexual harassment and states that they are forms of discrimination in violation of the equal treatment principle.
EU Directive 2006/54/EC is a recast directive that coalesces previous directives and caselaw on equal treatment for women and men in employment. The directive characterizes sexual harassment as both a form of sex discrimination and a violation of dignity in the workplace.
European Union directives are legally binding on Member States, but they require the adoption of implementing legislation on the Member State level. EU Member States were required to adopt implementing legislation meeting the objectives described in Directive 2002/73/EC by October 5, 2005. Member States must also adopt implementing legislation complying with EU Directive 2006/54/EC – including an appropriate definition of sexual harassment -- by August 2008. Of the countries in the Central and Eastern European region that have recently joined the EU, Bulgaria, the Czech Republic, Lithuania, Estonia, Slovakia and Romania have adopted legislation addressing sexual harassment which, for the most part, complies with Directive 2002/73/EC; most other new member states, such as Hungary, have also recently brought their national legislation in line with the requirements of Directive 2002/73/EC. From Open Society Institute, Monitoring the EU Accession Process: Equal Opportunities for Women and Men(September 2003) and Open Society Institute, Equal Opportunities for Women and Men, Monitoring law and practice in new member states and accession countries of the European Union (April 2005); Bulgarian Helsinki Committee, Bulgaria Adopts Successful Protection Against Discrimination Act (September 2003); Czech Republic, Employment Act, Section 1 (1); Republic of Lithuania, Law on Equal Opportunities, Articles 2, 5, 9 and 12; and Republic of Romania, Ordinance on Preventing and Punishing All Forms of Discrimination, Article 19; Republic of Estonia, Gender Equality Act (May 2004). For more information on this legislation, please refer to the section on the domestic legal framework concerning sexual harassment.
Definitions of Harassment Directive 2002/73/EC proscribes two forms of harassment, harassment related to sex and harassment of a sexual nature. The directive defines harassment as "unwanted conduct related to the sex of a person occur[ring] with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment." This concept of harassment is similar to the concept of sexual harassment based on sex under United States law which encompasses harassing behavior related to pregnancy, jokes about the competency of the female sex or comments reflecting pejorative stereotypes about the female sex. This definition of harassment related to sex is the same as the harassment definitions included in the earlier Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Together, the three directives discussed above prohibit harassment in the workplace that is related to sex, religion or belief, disability, age, sexual orientation, race and ethnic origin so long as the conduct is unwanted, its purpose or effect is to violate the dignity of a person and it creates an intimidating, hostile, degrading, humiliating or offensive environment.
The 2002 directive defines sexual harassment as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occur[ring], with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment." This definition of sexual harassment reflects the definition of sexual harassment adopted by the EU Commission in 1991 in its recommended Code of Practice on Measures to Combat Sexual Harassment. This concept of harassment is also similar to the concept of sexual harassment of a sexual nature under United States law, examples of which are unwanted sexual comments, touching and propositions.
It is important to note that the directive prohibits both "quid pro quo" and "hostile work environment" harassment. Hostile work environment harassment related to sex and of a sexual nature is addressed in the definitions described above with the reference to the creation of "an intimidating, hostile, degrading, humiliating or offensive environment". In connection with the definitions of harassment and sexual harassment, the directive clarifies that quid pro quo harassment is also prohibited by stating that "a person's rejection of, or submission to, [harassment or sexual harassment] may not be used as a basis for a decision affecting that person." These definitions are described in detail in the Explore the Issue section relating to Sexual Harassment.
Indirect and Direct Discrimination Directive 2002/73/EC clarifies the Equal Treatment Directive by providing definitions of direct and indirect discrimination. Direct discrimination occurs "where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation. Indirect discrimination occurs "where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
Institutional Mechanisms for Gender Equality Directive 2002/73/EC requires Member States to establish agencies to promote equality and enforce anti-discrimination laws. Member States must also encourage employers and those responsible for vocational training to institute preventative measures to protect against sexual harassment in the workplace. For more information on national machinery on gender equality and standards of employer responsibility, please see the section on the domestic legal framework on sexual harassment.
No Cap on Compensation to Victim Directive 2002/73/EC forbids Member States from capping compensation or reparation to victims of discrimination, including harassment or sexual harassment, except in "cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of [the] Directive is the refusal to take his/her job application into consideration."
Third Party Support or Representation on Behalf of Discrimination Victim Directive 2002/73/EC establishes guidelines for sanctioning and taking legal action against those responsible for sexual harassment and requires EU Member States to allow interested third parties (non-governmental organizations) to engage, "either on behalf of or in support of [discrimination] complainants, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under [the] Directive." See Article 6(3) of the Directive 76/207/EEC as amended by Directive 2002/73/EC.
Enforcement of Directive on the National Level In accordance with a decision by the European Court of Justice, the provisions of the Equal Treatment Directive, as amended in 2002, will become directly applicable (and enforceable by individuals under national law) if the Member State has not adopted adequate domestic legislation implementing the Directive within the allotted timeframe and to the extent that the provisions of the Directive confer rights to individuals.
Directive 2006/54/EC recasts Directive 76/207/EEC as amended by Directive 2002/73/EC; the definitions and essential requirements of these earlier equal treatment Directives with regards to sexual harassment remain unchanged. Additionally, the 2006 Directive incorporates and recasts Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes, Council Directive 75/117/ EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. The recast directive notes that all of these Directives contain provisions “which have as their purpose the implementation of the principle of equal treatment between men and women.”