The Norwegian Supreme Court has confirmed the lower threshold for sexual harassment

The case concerned an industrial mechanic that on several occasions had experienced unwanted conduct from two customers in the course of her employment at a mechanical workshop. The employee was young and the only woman at the company. She notified the company, but subsequently went on sick leave and eventually resigned.

One of the customers was acquitted in the Court of Appeal, as the court found that his behaviour did not meet the lower threshold of sexual harassment. The acquitted customer had admitted to putting his hand on the employee’s lower back under her sweater, but he was also accused of pretending to grab the employee’s crotch. The other customer was found guilty of sexual harassment, and the court had found the company jointly liable. Because the company did not appeal, the company’s liability was not a question for the Norwegian Supreme Court.

Based on this, the main question for the Norwegian Supreme Court was whether the acquitted customer had acted in breach of the ban on sexual harassment.

Three conditions must be satisfied before actions qualify as sexual harassment

Before the court, the employee argued that all conditions for compensation were fulfilled as the customers’ behaviour was unwanted and of annoying sexual character. She emphasized that the behaviour had taken place while she was at work and had had ensuing consequences for her employment. Oppositely, the acquitted customer argued that the “lower back-episode” had not been of sexual character and had been the only incident. He also claimed that the fact that there was no power imbalance between the parties should be considered a mitigating factor.

The court started by stating that three conditions must be fulfilled for an action to qualify as sexual harassment. The three conditions are that:

• Attention must be of sexual character
• Attention must be unwanted and
• Attention must have the purpose or effect of being “annoying”

The last of the three condition intends to lower the threshold for when behaviour is considered sexual harassment, compared to other Nordic countries.

After having qualified the three conditions, the court first established that the first condition was met, as the employee was on her knees with her back turned to the acquitted customer and was therefore unable to refuse or reject his behaviour which was relatively intimate, especially as it was against bare skin.

On the second condition, that the behaviour must be unwanted, the person performing the behaviour must as a main rule be made aware that the behaviour is unwanted, but this requirement is not absolute. In this case, the employee had stood up and left the workplace after the “lower back-episode”. Therefore, the court found that the customer should have known that his sexual attention was unwanted when the “crotch-episode” subsequently took place. This condition was therefore also fulfilled.

On the last condition, both incidents also fulfilled the condition of having an “annoying” effect. This was based on the fact that the attention had first of all resulted in consequences for the employee, but was also based on the objective circumstances, among other things, that the employee was young and the only woman at the workplace.

Based on all conditions, the court concluded that the behaviour of the acquitted customer was sexual harassment. The employee was therefore entitled to compensation. Like in the Court of Appeals, the other customer was also found to have breached the ban on sexual harassment.

IUNO’s opinion

The judgement illustrates the lower threshold for sexual harassment, and it shows that a case cannot be assessed on the behaviour which took place alone but must also include an assessment of the context of the circumstances. At the same time, the judgement is the first case on sexual harassment before the Norwegian the Supreme Court and so, it will have binding effect on similar cases going forward.

IUNO recommends that companies are aware of their responsibility to react to and prevent sexual harassment at the workplace. We have previously written about the company’s responsibility to react to and prevent sexual harassment here.

[The Norwegian Supreme Court’s judgement HR-2020-2476-A of 22 December 2020]