Sexual Harassment in the Workplace

Written by: Adv. Kobi Hatan

One of the burning issues of the past couple of years has been sexual harassment in general, and sexual harassment in the workplace in particular — largely as a result of the #metoo campaign, which pushed the subject onto the public agenda.

We therefore thought it worthwhile to say a little about sexual harassment in the workplace.

A preliminary note: sexual harassment can occur between men and women, between women and women, and between men and men. For convenience we will refer to a (female) complainant and a (male) respondent, but it may equally be a (male) complainant and a (female) respondent, or any other combination.

In 1998 the Prevention of Sexual Harassment Law, 5758-1998, and the Prevention of Sexual Harassment Regulations (Employer’s Duties), 5758-1998, were enacted.

What is sexual harassment?

The Law sets out a number of behaviours that constitute sexual harassment:

Blackmail by way of threats, where the act the person is required to perform is of a sexual nature (for example: “If you don’t sleep with me, I’ll fire you”);
Indecent acts, including rape;
Repeated propositions of a sexual nature, directed at a person who has shown the harasser that they are not interested in such propositions — the element of “having shown the harasser that they are not interested” is required where the harasser is a fellow employee. Where the harasser is the employee’s superior, it is enough that the employee did not respond to the first proposition.
Repeated references directed at a person that focus on their sexuality, where that person has shown the harasser that they are not interested in such references (for example: “What legs you have…” and so on) — the element of “having shown the harasser that they are not interested” applies only to a fellow employee, and not to a superior, as in the preceding paragraph;
A degrading or humiliating reference directed at a person with respect to their sex or sexuality, including sexual orientation — even jokes of a sexual nature may amount to a degrading or humiliating reference;
Publication of a photograph, film or recording of a person that focuses on their sexuality, in circumstances where the publication is liable to humiliate or degrade the person, and no consent to the publication was given.

It should be noted that there is extensive case law on each of these behaviours — which we cannot detail in this short article — defining what falls within the scope of each prohibited behaviour.

It is very important to consult a lawyer who specialises in labor law, and in particular in the field of sexual harassment, in order to understand whether a particular act amounts to sexual harassment, and at what level of severity, and what the appropriate courses of action are in the specific case.

Sexual harassment is both a criminal offence (in respect of which a complaint may be filed with the police) and a civil tort (in respect of which a claim may be filed in a civil court).

What are the employer’s duties with regard to preventing sexual harassment?

General duties:

To appoint a person responsible for handling the subject of sexual harassment — a woman should be appointed to the role where possible;
To establish an effective procedure for filing a complaint;
To handle any case of sexual harassment or victimisation effectively;
To do everything in its power to prevent a recurrence of such acts and to remedy the harm caused, including separating the complainant from the respondent;
Where there are more than 25 employees at the workplace, to adopt a code of conduct for the prevention of sexual harassment and to display it in a prominent place;
To carry out training activities on the subject of sexual harassment.

Duties in the event that a complaint is filed / information or rumours of sexual harassment are received:

The employer must refer the complainant to the officer responsible for preventing sexual harassment;
The responsible officer must receive the complaint, conduct an inquiry — hearing the parties and their witnesses — and summarise their conclusions and recommendations in a report;
The responsible officer must act efficiently and without delay, while affording maximum protection to the privacy of all those involved in the process (a duty of confidentiality) and protecting the complainant;
The employer must reach a final decision, taking into account the conclusions and recommendations of the responsible officer.

I was sexually harassed at work — what should I do?

The person harassed has three options, one or all of which may be pursued together:

Filing a complaint with the officer responsible for the Prevention of Sexual Harassment Law at the employer;
Filing a civil claim against the harasser;
Filing a complaint with the police in respect of the harassment.

I have decided to file a complaint with the responsible officer at my workplace — what happens now?

First, it is important to remember that the Law provides that a complaint is to be examined quickly and efficiently, while affording maximum protection to the dignity and privacy of the parties.

The responsible officer must open an inquiry into the complaint.

It is important to know that the responsible officer is obliged to look into every complaint or piece of information regarding sexual harassment that reaches them. The responsible officer at the workplace is responsible for the safety of all employees and for creating a work environment free of harassment. There is therefore a general interest, shared by the workforce as a whole, in examining complaints or information about sexual harassment, and the responsible officer cannot be asked not to look into a complaint that has reached them.

The responsible officer will summon the complainant and take down their complaint/account. A copy of the complaint/account will be given to the complainant.

It is very important to detail everything — including whatever is “uncomfortable”.

If there is any fear of the respondent, this should be raised with the responsible officer, who must act to keep the respondent away from the complainant.

If there are witnesses who saw the act, or other employees who were harassed by the same person, and so on, it is important to mention this too to the responsible officer, who must summon them as well and examine the matter with them.

The responsible officer will also summon the respondent for an inquiry, set out the allegations before them and take down their version and response to the matter.

In the workplace proceedings before the responsible officer, no “confrontation” is held between the complainant and the respondent. Each side is heard separately.

At the end of the inquiry, the responsible officer will submit their conclusions and recommendations to the employer in writing.

The complainant is entitled to review the responsible officer’s conclusions and recommendations, within 7 days of receiving the officer’s summary report.

The employer may act in one of three ways:

Giving instructions to those involved, including clarifying the rules of conduct at the workplace and keeping the respondent away from the complainant, in order to ensure that the act of harassment does not recur.
Opening disciplinary proceedings against the respondent — up to and including dismissal (of course, to the extent the employer is considering dismissal, it must summon the respondent to a hearing prior to dismissal).
Taking no action.

The employer will set out its decision in writing and deliver it to the complainant and the respondent.

A complaint of sexual harassment has been filed against me, but I don’t think I did anything — what should I do?

First of all, it is important to take a deep breath. A complaint of sexual harassment is no simple matter, and can cause problems both at the workplace and in one’s personal life.

It is highly advisable — even before giving your account to the responsible officer at the workplace — to consult a labor lawyer who specialises and practises in the field of sexual harassment.

It should be noted that there is no vested right to be represented by a lawyer in sexual harassment inquiry proceedings.

It is important to obtain as much information as possible about the complaint — the identity of the complainant, the act attributed to you, when it occurred and any other relevant detail important to your response (on this point, it should be noted that the undersigned represented a party in proceedings in which the Regional Labor Court held that there was no such right, but on appeal to the National Labor Court, the National Court’s judges strongly criticised the Regional Court’s judgment and clarified that a complaint cannot be dealt with if the respondent has not been given all the relevant details).

Thus, for example, there may be a situation in which the complainant claims that the act took place on a day when you were not at the workplace at all.

At the inquiry before the responsible officer, you must of course cooperate with the inquiry and answer the officer’s questions.

It is important not to respond to vague, non-specific questions: “Do you think you harassed anyone at work?”; “Can you think of any other complainants?” and so on. If there are other complainants, let them be presented to you.

Of course, if there are witnesses who saw the incident in respect of which the complaint was filed, it is important to mention this, and the responsible officer must speak with them as well.

At the end of the inquiry, the responsible officer will formulate their conclusions and recommendations and pass them on to the employer. You are entitled to review the summary report and the recommendations.

The employer may accept the responsible officer’s recommendations, reject them, or accept them in part. It must summarise its decision in writing and deliver it to you.

To the extent the responsible officer finds that sexual harassment did indeed take place and the employer has begun taking action, it is all the more important to consult a lawyer who specialises in the field, in order to ensure that your rights are protected.

The field of preventing sexual harassment in the workplace is a very broad one, developing from one judgment to the next, and set to continue developing in the coming years.

The most important message to take from this article is that a professional and businesslike atmosphere must be maintained at the workplace — free of harassment and of jokes of a sexual nature — creating a safe work environment.