Sexual harassment of a female employee: Application of Greek Law 3896/2010
Sexual Harassment of a Female Employee in Greece: Application of Law 3896/2010
Unwanted verbal and physical conduct of a sexual nature, resulting in an infringement of the personality of a female employee, exploiting the employment relationship and the position of the defendant as the employer.
The Single-Member Court of Appeal of Piraeus dismissed an appeal against a decision which awarded monetary compensation to an employee due to sexual harassment in the workplace.
Specifically, by affirming the first instance judgment, the court held that the actions of the defendant, as detailed in the decision, constituted sexual harassment of the employee, as they involved forms of unwanted verbal and physical conduct of a sexual nature, which were intended to and did result in the infringement of the dignity of the plaintiff-employee. This conduct by the defendant is not acceptable under the law, as it infringes upon the plaintiff’s personality in the context of her sexual life, by exploiting the employment relationship and the defendant’s position as an employer.
More specifically, according to the reasoning of the court, the employer and its representatives must refrain from actions or behaviors that constitute harassment, and especially sexual harassment of an employee in Greece: Application of Law 3896/2010, which have the purpose or effect of infringing upon the employee’s dignity. This obligation arises primarily from the employer’s duty of care towards the employee.
In jurisprudence, this obligation was based on the general provisions of the Greek Civil Code (A.K.) concerning the infringement of personality and tort liability (Articles 57, 59, 914, 932 A.K.). In cases where the victim of sexual harassment was forced to leave their job or the employer terminated the employment contract due to the employee’s refusal to accept the harassment, the employer’s behavior was considered a unilateral adverse alteration of the terms of employment (Article 7 of Law 2112/1920), and the termination of the contract was considered abusive and void under Article 281 A.K., allowing the employee to seek compensation, including for moral damage.
In the meantime, however, new regulations were introduced by the legislator in compliance with European Union law. Specifically, in EU legislation, sexual harassment of an employee was addressed within the framework of the prohibition of discrimination in the field of employment and the principle of equal pay between men and women, initially for identical work and later for work of equal value, in both primary law (Article 119, now 141 of the Treaty Establishing the European Community) and secondary law, notably in Directives 75/117/EEC, 76/207/EEC, 86/378/EEC, and 97/80/EC. Subsequently, the provisions of these directives were recast in Directive 2006/54/EC, where they were codified and simplified, and the Community acquis in this area was updated, incorporating much of the relevant case law of the European Court of Justice.
According to the objectives of Directive 2006/54/EC, in its preamble (Recital 6), it is stated that harassment and sexual harassment of an employee are contrary to the principle of equal treatment between men and women and constitute discrimination on the grounds of sex for the purposes of the directive. These forms of discrimination are not only observed in the workplace but also in the context of access to employment, vocational training, and career advancement and should, therefore, be prohibited and subject to effective, proportionate, and dissuasive sanctions.
The transposition of Directive 2006/54/EC into Greek law was achieved through Law 3896/2010, which is applicable in the case at hand. Consequently, sexual harassment of an employee constitutes behavior that is not acceptable under the law as it infringes the personality of the employee and gives rise to rights for the harassed individual, while imposing sanctions on the harasser. Legal protection is primarily regulated under Article 22 of Law 3896/2010, while Article 23 sets out civil, administrative, and criminal sanctions. When the harasser is the employer, the harassed individual is entitled to full compensation, both positive and consequential, for material and moral damage caused by the harassment, under Article 23(1) of Law 3896/2010, as well as under Articles 57, 59 A.K., or even 914, 923 A.K.
The court emphasized, among other things, by rejecting the relevant grounds of appeal, that in the case at hand, which concerns a violation of the principle of equal treatment and, in particular, sexual harassment of a female employee in Greece, the general procedural rules regarding the burden of proof are overridden, and a specific rule of reversal of the burden of proof is established. Specifically, according to Article 24 of Law 3896/2010, when a person falling within the scope of the law alleges before a court or other competent authority facts or evidence from which direct or indirect discrimination on the grounds of sex is presumed, or that sexual or other harassment as defined by the law occurred, the respondent bears the burden of proving before the court or other competent authority that there was no violation of the principle of equal treatment of men and women or harassment.
Excerpt from the judgment
The transposition of Directive 2006/54/EC into Greek law was achieved through Law 3896/2010, applicable in the case at hand (Government Gazette A’ 207/8-12-2010), in Article 3 of which it was stipulated that all forms of direct or indirect discrimination on the grounds of sex are prohibited, especially in connection with family status, in all areas covered by the law, as specified in the following provisions, and in paragraph 2(a), harassment, sexual harassment, as well as any less favorable treatment due to tolerance or rejection of such behavior, constitute discrimination on the grounds of sex and are prohibited. Furthermore, Article 24 provides that when a person falling within the scope of the law alleges that they are subject to treatment that involves discrimination on the grounds of sex under the above provisions (including sexual harassment) and presents facts or evidence from which direct or indirect discrimination on the grounds of sex is presumed, or that sexual or other harassment as defined by the law occurred, the respondent bears the burden of proving before the court or other competent authority that there was no violation of the principle of equal treatment of men and women or harassment.
Moreover, protection against retaliation is regulated under Article 14 of Law 3896/2010, which (in its second paragraph) prohibits dismissal or termination of the employment relationship by any means, as well as any other adverse treatment when it constitutes retaliatory behavior by the employer due to the employee’s refusal to submit to sexual harassment in Greece or other harassment as defined by Article 2 of Law 3896/2010. Forms of harassment, as defined by the directive, can range from mild behaviors to serious criminal offenses, including unnecessary touching of the employee’s body, unwanted romantic and indecent proposals, or pressure for sexual acts or repeated advances within the workplace, and especially acts that infringe upon sexual dignity by exploiting the employee’s position, which under Greek law also constitute criminal offenses (see Article 337(1) and (5) of the Penal Code). Consequently, sexual harassment of an employee constitutes behavior that is not acceptable under the law, as it infringes the personality of the employee and gives rise to rights for the harassed individual, while imposing sanctions on the harasser. Legal protection is primarily regulated under Article 22 of Law 3896/2010, while Article 23 sets out civil, administrative, and criminal sanctions. When the harasser is the employer, the harassed individual is entitled to full compensation, both positive and consequential, for material and moral damage caused by the harassment, under Article 23(1) of Law 3896/2010, as well as under Articles 57, 59 A.K., or even 914, 923 A.K. (Athens Court of Appeal 1196/2020, NOMOS database, Georgios N. Diamantopoulos, “Legislative Framework and Jurisprudential Aspects of Sexual Harassment in the Workplace,” DEE 2016.1334).
Contact the best criminal lawyers in Greece for sexual harassment of the law office of Economou & Economou in Athens according to Lawzana at (+30) 2103603824 or send us an email at econlaw@live.com or fill out the contact form.
