Civil Law
last updated 13 July 2007

Civil law protections against sexual harassment can take the form of laws prohibiting discrimination (whether they address sex discrimination specifically or prohibit many forms of discrimination), labor laws and contract provisions, and tort laws. Each type of law brings with it advantages and disadvantages for victims of sexual harassment. The following discussion of civil law approaches to sexual harassment law illustrates some of the considerations that should be made when drafting a law prohibiting sexual harassment.

Adapted from International, Regional and National Developments in the Area of Violence Against Women 1994-2003, Addendum 1 to 2003 Report of the Special Rapporteur on Violence against Women, E/CN.4/2003/75/Add.1 (Feb. 2003)(PDF and Word, 397 pages); Robin Phillips, Violence in the Workplace: Sexual Harassment in Women and International Human Rights Law, Vol. 1, Eds. Kelly D. Askin & Dorean M. Koenig, 257, 268-274 (1999).

Sex Discrimination Laws/ Gender Equality Statutes

The United States prohibits sexual harassment under its sex discrimination law applicable to employers with 15 or more employees. Countries that have adopted a similar approach include the United Kingdom, Australia, Sweden, and South Africa. Addressing sexual harassment as sex discrimination helps to highlight the role sexual harassment plays in the subordination of women in the workplace. This approach may not be the most effective in protecting victims whose harassers are of the same sex, however. Courts in some countries may not be willing to view same sex sexual harassment as discrimination based on sex. As a result, such conduct may not give rise to legal rights under a sex discrimination law. Similarly, depending on the applicable law, sexual behavior that offends men and women equally, or conduct where a woman is the perpetrator, may not be viewed as sex discrimination. In many instances, these concerns have been addressed either within the language of the relevant statute or through case law. The following are brief summaries of sex discrimination laws adopted around the world. 

  • The United States prohibits sexual harassment as a form of sex discrimination under Title VII of the 1964 Civil Rights Act. The U.S. definition includes both quid pro quo sexual harassment and hostile work environment sexual harassment. The Equal Employment Opportunity Commission (EEOC) is the government body responsible for enforcing the Civil Rights Act by adjudicating complaints it receives against employers. EEOC guidance explicitly includes harassment by a co-worker (employee-employee harassment) in its factsheet describing sexual harassment. Some forms of same-sex harassment are also actionable under Title VII; this was the holding of a 1998 U.S. Supreme Court case, Oncale v. Sundowner Offshore Services, Inc. The EEOC does not separately track same-sex harassment claims; however, sexual harassment filings by males have increased from 10% in 1994 to 15.4% of all claims in 2006. In Oncale v. Sundowner, the Court also commented on an argument that allowing same-sex harassment under Title VII would turn it into a "general civility code" for the workplace. In rejecting this argument, the Court noted that in same-sex cases the plaintiff must still prove that the conduct at issue was discrimination because of sex. This narrower focus distinguishes U.S. sexual harassment law from harassment law in countries where emphasis is placed on the dignity of all workers.
  • The United Kingdom prohibited sexual harassment under the Sex Discrimination Act of 1975.  That law has been amended and updated by The Employment Equality (Sex Discrimination) Regulations 2005.  These regulations, which came into force on October 1, 2005, were issued in response to the European Union's amended Equal Treatment Directive – 2002/73/EC.  See Updating the Sex Discrimination Act, Consultation Document (2005).  The amended British law still prohibits both quid pro quo and environmental harassment (i.e. hostile work environment harassment), but it also adopts the hybrid sex discrimination/violation of dignity approach proposed by the EU’s Equal Treatment Directive. Thus, unlawful sex discrimination includes conduct based on sex or conduct of a sexual nature that violates a person’s dignity or subjects them to a hostile work environment.  In general, the Sex Discrimination Act includes provisions for direct sex discrimination, indirect sex discrimination, and victimization. The British Equal Opportunity Commission (EOC) includes examples of employee-employee harassment in its discussion of sexual harassment. British law protects employees from same-sex harassment where the victim of harassment can show that the harasser would not have acted the same way towards someone of the opposite gender. British caselaw includes examples of both female-on-female harassment and male-on-male harassment. As the result of a 1999 European Court of Justice ruling, the Sex Discrimination Act has also been amended to include protections for transsexuals (i.e. “gender reassignment.”) British sexual harassment law does not protect employees from general bullying; like American law, British law requires that claims for harassment show that discrimination is involved, i.e. that the offensive conduct was based on a person’s sex or of a sexual nature. 
  • The Australian Sex Discrimination Act 1984 states: "It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer."  The law also prohibits such harassment by the employer.  
  • The Swedish Equal Opportunities Act of 2005 notes that an employer "who becomes aware that an employee considers herself/ himself to have been subjected by another employee to gender-related or sexual harassment, shall investigate the circumstances surrounding the said harassment and, where such has occurred, implement whatever measures may be reasonably required to prevent further harassment." Sweden, Equal Opportunities Act, 2005, Section 22a.  An employer who does not fulfill this obligation is liable for damages.  Id. Section 27a.  A Swedish court found an employer liable for noncompliance with Section 22a when the employer failed to investigate workplace conditions following the report of a rape of one employee by another employee, even though the rape occurred outside of the workplace.  See General Report on Developments in EU Gender Equality Law 20 (2005).
  • In 2002, Romania adopted a law on Equal Opportunities and Treatment for Women and Men, which seeks to eradicate direct and indirect sex discrimination in all areas of public life. Direct gender discrimination is defined as any detrimental treatment based on gender, pregnancy, maternity, birth or paternity leave (Article 4(a)); indirect discrimination occurs where apparently neutral practices impact individuals of one gender, unless the practice can be validated by non-gender related factors. Article 10 prohibits sexual harassment, which is defined as creating an intimidating, hostile or discouraging workplace environment for an employee, or negatively affecting the employees promotions or pay when the employee refuses to engage in sexual relations. Employers are required to inform employees of the sexual harassment prohibition through posters. Punishment ranges from 1.5 million lei (44USD) to 15 million lei (442USD).

Sexual Harassment Provisions in Comprehensive Anti-Discrimination Laws

Some countries have adopted comprehensive anti-discrimination laws that prohibit harassment on a number of bases and in a number of contexts. These laws proscribe discrimination on the basis of sex, race, ethnic origin, and sexual orientation, among other bases, and address discrimination in employment, housing, marriage rights and property. Some women's advocates have complained that comprehensive anti-discrimination laws, and the monitoring/enforcement agencies they create, do not draw enough attention to the specific problem of sex discrimination in employment (including sexual harassment) and do not provide the most effective mechanisms for monitoring and enforcing the sex discrimination provisions of the law in particular. As a result, these advocates believe that it will be more difficult for the relevant government to promote equal employment opportunities for women and men under a comprehensive discrimination law than under a sex discrimination law or a law providing for equal employment opportunities for men and women. See generally Genoveva Tisheva, Gender Equality Institutions in the Candidate Countries-A Requirement in the EU Accession Process (26 March 2003).

In Central and Eastern Europe, Romania and Bulgaria have adopted broad anti-discrimination laws in 2002 and 2003, respectively. Romania's Law No. 48 of 2002 on the Prevention and Sanction of All Forms of Discrimination. Article 1 guarantees equality between citizens in working conditions, recruitment, promotions, access to training, social security, public services, education, and public peace. Article 2(1) defines gender discrimination as differentiation, exclusion, limitation or partiality based on gender. However, affirmative action measures to assist disfavored groups are not considered discrimination (Article 2(4)). Gender discrimination is proscribed in employment (Articles 5, 6, 7 and 8), choice of residence (Article 17), and access to public services (Article 10), education (Article 15) and public places (Article 18). Sanctions for violating the law include fines of one million lei (29USD) to ten million lei (295USD) when one person is the object of discrimination, and between two million lei (59USD) to twenty million lei (590USD) when a group of persons is the object of discrimination. Article 20 also provides for damages, as well as restorative relief.

Bulgaria's Law on the Protection Against Discrimination prohibits "any discrimination in the spheres of labor, education, access to social services, etc." on the basis of age, gender ethnic group, national origin, education, family status and property status. The Commission on the Prevention of Discrimination will be charged with enforcing this law and will entertain discrimination complaints, including complaints of sexual harassment, investigate the complaints and impose fines where the law has been violated. From Human Rights Project Press Release, Bulgaria Made Important Step for Elimination of Discrimination (Sept. 19, 2003).

Labor Codes and Contract Provisions

Some countries address sexual harassment in their labor codes. Victims of sexual harassment may be able to bring claims under general labor law if, for example, they are dismissed after a refusal to engage in sexual activities with an employer or supervisor. In addition, employees may be able to pursue action under labor contracts or agreements defining the terms of employment. Specific provisions in labor codes may be an effective way to hold employers and harassers responsible for sexual harassment because they clearly define the range of activities for which these parties may be held liable. This, however, can also present a problem: as forms of sexual harassment are enumerated, labor codes can become increasingly complex and unwieldy. However, provisions on sexual harassment in labor codes can avoid the constraints created by laws that only conceive of sexual harassment in terms of employment discrimination based on the sex of the victim. Under labor codes, an employee who is the target of sexual harassment need not show that the offending behavior was directed at her because of her gender; this approach to sexual harassment law may also facilitate claims for same-sex harassment. Adapted from Robin Phillips, Violence in the Workplace: Sexual Harassment in Women and International Human Rights Law, Vol. 1, Eds. Kelly D. Askin & Dorean M. Koenig, 257, 272 (1999).

A few examples of sexual harassment prohibitions in labor law are described below.

  • In Spain, the Worker's Charter provides that "all workers shall enjoy [the right] to respect for his privacy and proper consideration for his dignity, including the protection against verbal or physical offense of a sexual nature."
  • New Zealand prohibits both quid pro quo and hostile work environment sexual harassment in its labor code as part of a Employment Relations Act 2000:

[A]n employee is sexually harassed . . . if that employee's employer or a representative of that employer-(a) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains-(i) an implied or overt promise of preferential treatment in that employee's employment; or (ii) an implied or overt threat of detrimental treatment in that employee's employment; or (iii) an implied or overt threat about the present or future employment status of that employee; or (b) by-(i) the use of language (whether written or spoken) of a sexual nature; or (ii) the use of visual material of a sexual nature; or (iii) physical behaviour of a sexual nature, -subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.

Further provisions of the labor code also extend these protections to an employee who is sexually harassed by a "co-employee or by a client or customer of the employer."

Under the Lithuanian Labour Code, sexual harassment of colleagues, subordinates or customers may constitute a gross breach of the work duties of an employee.  A Lithuanian District Court relied on this provision to uphold the termination of a university professor for offering to help a student in exchange for sexual favors.  See General Report on Developments in EU Gender Equality Law (2005).

Serbia’s Law on the Protection of Work provides that women have an equal right to “secure working conditions at work places and/or while doing assigned jobs.”  Convention on the Elimination of All Forms of Discrimination Against Women, Initial Report of State Parties, Serbia (2007).  “However, attention should be drawn to the fact that no separate law on the protection from sexual harassment and blackmail has been adopted as yet.”  Id. at 23.

Macedonia prohibits sexual harassment and other discrimination in employment through recent amendments to its labor laws.  See Labor Relations Act, the Official Gazette of the Republic of Macedonia, No.62, July 28, 2005.  The changes in Macedonian law were intended to bring Macedonia into compliance with the EU’s Equal Treatment DirectiveSee Open Society Institute, On the Road to the EU, Monitoring Equal Opportunities for Women and Men in Macedonia (2006).  Sexual harassment (or annoyance) is now defined in Macedonian law as any verbal, non-verbal or physical conduct of a sexual nature, occurring with the purpose or effect of violating the dignity of the person seeking employment, or of an employee, and which creates an intimidating, hostile, humiliating or offensive environment. 

Tort Law

In some countries, victims of sexual harassment may be able to bring a claim under tort law for psychological or physical injuries she or he sustained as a result of the harassment. In the United States, victims of sexual harassment may make tort claims involving negligent retention of a harassing employee, intentional infliction of emotional distress, and assault and battery.

In Japan, for example, courts have applied tort law in cases involving sexual harassment. This law, Civil Code Article 709, states, "a person who unlawfully infringes upon another person's rights may be liable to pay damages." "Rights" in this context refer to an individual's right to work in an environment conducive to work, in other words, an individual's right to be free of a hostile work environment. In addition to hostile environment sexual harassment, a court may find a violation of a victim's right to privacy, as it did in the well-publicized Fukuoka case in Japan, where a woman alleged that she was forced to leave her job after her supervisor spread rumors about her personal life and sexual behavior. From Jane Aeberhard-Hodges, Sexual Harassment in Employment: Recent Judicial and Arbitral Trends (1996).

Although tort law may provide a cause of action in some sexual harassment cases, it may not be the most effective way for a victim of sexual harassment to seek redress for such behavior at the workplace. To sustain a tort action, plaintiffs usually have to show evidence of an injury; this means that tort action will usually only be appropriate in the most severe cases of sexual harassment. In addition, tort law may limit a victim's ability to recover damages from the harasser or employer. The victim may be limited to recovering directly from her harasser, because employers are usually only liable for the actions of employees when the employees are acting within the scope of their employment. Adapted from Robin Phillips, Violence in the Workplace: Sexual Harassment in Women and International Human Rights Law, Vol. 1, Eds. Kelly D. Askin & Dorean M. Koenig, 257, 271 (1999).

Civil Law Remedies

Civil laws for sexual harassment vary depending on the type of law under which they are addressed:

  • In the United States, under Title VII of the Civil Rights Act, a plaintiff may receive compensation in a number of different areas. These include future economic loss, loss of enjoyment of life, and back pay. Where an employer is shown to have acted with malice or reckless indifference, a plaintiff may also receive punitive damages. Finally, a successful plaintiff may be able to recover attorneys' fees and expert fees in connection with her or his case.
  • Under the Swedish Equal Opportunities Act, if an employer sexually harasses an employee, or fails to investigate and prevent instances of sexual harassment, the employer may have to pay money damages to the employee. From Sweden, Equal Opportunities Act, 2005.