A Brief for Lawyers in Spain on Sexual Harassment in the Workplace
Spanish courts are punishing those companies that do not offer specific procedures that can facilitate as well as reduce the need for complaints of sexual harassment within the workplace.
The High Court in Galicia highlighted the matter in a recent judgment in which a company was reprimanded for damages caused to a female worker as a result of failing to implement programme to prevent sexual harassment in the workplace.
The regional High Court noted that Section 48 of the Equal Rights Law, signified that companies ought to promote an atmosphere in the workplace that would avoid sexual harassment and sexual discrimination and that it was not establishing a mere recommendation. In that regard, the rule created an obligation on the part of the company to adopt preventative measures.
In the case before the court, it was considered proven that the company not only had failed in adopting preventative measures but that its complete indifference towards an act of sexual harassment by one of its workers, of which it was aware, had also been demonstrated.
For this reason, the judge reading the decision of the court said, that even where the company did not have knowledge of the sexual harassment (although in this case it did), such failure would not exculpate it from responsibility for the damages caused to the plaintiff.
The court did not disagree that the Supreme Court in a previous case had decided that, upon lack of knowledge of the sexual harassment that it would be absolved of responsibility. However, it resolved that it could not be overlooked that the facts of that case took place before the enactment of the Equal Rights Law.
As a result, the High Court of Galicia decided to uphold the sentence of the judge of First Instance against the company as well as the award of damages in the amount of 4000. Furthermore, the Court decided not to reduce the amount originally awarded given the failure of the company to implement preventative measures and, moreover, as a result of its passivity in the matter.
In addition, the Court also decided to set aside the company’s decision to terminate the employee’s employment contract for disciplinary reasons. The court concluded by expressing that, having proven the sexual harassment had occurred, everything pointed towards an unfair dismissal on the basis of gender.
Consequently it was decided that the company, upon awareness that sexual harassment had taken place, decided to remove the problem by firing the victim of the harassment and not the perpetrator.