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HR Legal

New #MeToo bill on the way: Higher compensation for sexual harassment

19 November 2018

The Danish Ministry of Employment has presented a bill to Parliament on changes to the Equal Treatment Act. The bill will bring new focus to sexual harassment in the workplace and increase the level of compensation in cases related to sexual harassment.

Since the fall of 2017, the #MeToo movement has highlighted problems with sexual harassment in the entertainment and media industry, as well as other workplaces. As a result, the Danish government put forward a Perspective and Action Plan for Equality 2018 at the beginning of this year. The new bill implements some of the initiatives in this plan and aims to combat sexual harassment in the workplace.

New focus on the prohibition against sexual harassment

Sexual harassment is already prohibited under the Danish Equal Treatment Act because it is considered as gender-based discrimination. However, the bill will underline the existing prohibition by strengthening the link between the prohibition and the employer’s obligation to provide equal working conditions for men and women. The bill therefore contains a provision that explicitly states that equal working conditions also includes the prohibition against sexual harassment. This has already been established by case law but with the new bill, it will be stipulated directly in the law.

According to the explanatory notes in the bill, the “tone at the work place” can no longer be taken into consideration, when determining whether sexual harassment has taken place. The courts have previously taken this into account when assessing cases, but the bill points out that the tone of communication in the workplace is not the choice of the individual employee and therefore, it should not be included in the assessment of whether a certain conduct constitutes sexual harassment.

Higher level of compensation

The bill will also increase the level of compensation in cases regarding sexual harassment. A provision in the bill states it may be considered whether the prohibition against sexual harassment has been violated, when assessing the compensation. More specifically, the bill proposes that the level of compensation in cases on sexual harassment should be increased by one third compared to the current level on approximately DKK 25.000. In the future, the developments in pay levels and prices must also be taken into consideration, when determining the compensation.

If the bill is passed, the changes will enter into force on 1 January 2019. However, the increased level of compensation will only apply to violations committed after this date.

IUNO’s opinion

If passed, the bill will strengthen the protection against sexual harassment in the workplace.

Case law has already established that companies must secure a working environment that is free from sexual harassment, but it is an innovation that the tone of the workplace cannot be taken into consideration when assessing whether sexual harassment has occurred.

If companies want to avoid cases on sexual harassment in the workplace, it is important to create the right culture within the workplace. Companies can do this by making policies on how the employees should behave at work and what employees should do if they experience – or witness – sexual harassment. Companies should also make sure that all employees are aware of the policies and that they receive appropriate training in this respect.

IUNO can assists companies with advice and guidance on how to work proactively with the mental working environment in the workplace.

We will follow any developments in relation to the bill closely and return with updates.

[The Ministry of Employment’s “Bill on the amendment of the Equal Opportunities Act”]

Note: The bill on changes to the Danish Equal Treatment Act was passed in unchanged form and the changes entered into force on 1 January 2019. However, the increased level of compensation will only apply to violations committed after this date.

Since the fall of 2017, the #MeToo movement has highlighted problems with sexual harassment in the entertainment and media industry, as well as other workplaces. As a result, the Danish government put forward a Perspective and Action Plan for Equality 2018 at the beginning of this year. The new bill implements some of the initiatives in this plan and aims to combat sexual harassment in the workplace.

New focus on the prohibition against sexual harassment

Sexual harassment is already prohibited under the Danish Equal Treatment Act because it is considered as gender-based discrimination. However, the bill will underline the existing prohibition by strengthening the link between the prohibition and the employer’s obligation to provide equal working conditions for men and women. The bill therefore contains a provision that explicitly states that equal working conditions also includes the prohibition against sexual harassment. This has already been established by case law but with the new bill, it will be stipulated directly in the law.

According to the explanatory notes in the bill, the “tone at the work place” can no longer be taken into consideration, when determining whether sexual harassment has taken place. The courts have previously taken this into account when assessing cases, but the bill points out that the tone of communication in the workplace is not the choice of the individual employee and therefore, it should not be included in the assessment of whether a certain conduct constitutes sexual harassment.

Higher level of compensation

The bill will also increase the level of compensation in cases regarding sexual harassment. A provision in the bill states it may be considered whether the prohibition against sexual harassment has been violated, when assessing the compensation. More specifically, the bill proposes that the level of compensation in cases on sexual harassment should be increased by one third compared to the current level on approximately DKK 25.000. In the future, the developments in pay levels and prices must also be taken into consideration, when determining the compensation.

If the bill is passed, the changes will enter into force on 1 January 2019. However, the increased level of compensation will only apply to violations committed after this date.

IUNO’s opinion

If passed, the bill will strengthen the protection against sexual harassment in the workplace.

Case law has already established that companies must secure a working environment that is free from sexual harassment, but it is an innovation that the tone of the workplace cannot be taken into consideration when assessing whether sexual harassment has occurred.

If companies want to avoid cases on sexual harassment in the workplace, it is important to create the right culture within the workplace. Companies can do this by making policies on how the employees should behave at work and what employees should do if they experience – or witness – sexual harassment. Companies should also make sure that all employees are aware of the policies and that they receive appropriate training in this respect.

IUNO can assists companies with advice and guidance on how to work proactively with the mental working environment in the workplace.

We will follow any developments in relation to the bill closely and return with updates.

[The Ministry of Employment’s “Bill on the amendment of the Equal Opportunities Act”]

Note: The bill on changes to the Danish Equal Treatment Act was passed in unchanged form and the changes entered into force on 1 January 2019. However, the increased level of compensation will only apply to violations committed after this date.

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Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

Kathrine

Skøtt Jespersen

Senior associate

Kirsten

Astrup

Associate

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