Harassment
Characteristics of harassment (according to the B-GlBG) and legal references
Behavior from the sphere of discrimination
The harassing person engages in behavior from the sexual sphere or in a gender-related context or from the sphere of ethnicity, religion or belief, age or sexual orientation.
Violation of dignity
The act leads to or aims to violate the dignity of the person affected. The violation of dignity must be assessed objectively, i.e. the behavior must be degrading when viewed from the outside.
"Behavior is considered to violate dignity if it degrades a person and this degradation exceeds a certain minimum level of intensity. Whether this is the case in concrete terms must be assessed objectively and from the context. In this context, an important role is played by whether an imbalance of power and the associated limited opportunity to defend oneself has been exploited." (cf. https://www.gleichbehandlungsanwaltschaft.gv.at/Themen/Belaestigung.html)
Undesirability
Whether the behavior is undesirable, inappropriate or offensive for the person concerned must be assessed subjectively, i.e. depending on individual perception. However, there is no obligation on the person concerned to make the undesirability of the harassing person known. Silence does not automatically mean consent. The responsibility lies with the person acting to ensure that the behavior is in order. The assessment is based on whether, from the perspective of an objective observer, the harassing person should have assumed that their behaviour was unwelcome.
Those affected are nevertheless advised: Fend off instead of ignoring. Displeasure at unwanted behaviour should be clearly expressed. Harassment should be clearly and directly rejected. However, this is not a prerequisite for taking legal action.
Impairment of the work or study environment
The unwanted behavior creates or is intended to create an intimidating, hostile, degrading or humiliating work or study environment for the person concerned.
Legal references in connection with harassment
In addition to employment and labor law, as well as criminal and private law regulations, the standards of equal treatment law applicable to the University of Graz (Federal Equal Treatment Act and parts of the GLP 2017 statutes) are particularly relevant and provide guidelines and protective provisions for university members. Sections 8, 8a and 16 as well as 42 para. 2 of the Federal Equal Treatment Act and sections 24 and 45f of the GLP 2017 are particularly noteworthy.
Harassment in the workplace or during studies can have legal consequences. The Federal Equal Treatment Act stipulates that discrimination on the basis of gender, ethnicity, religion or belief, age or sexual orientation constitutes a breach of duty. Harassment is explicitly declared as discrimination and can lead to claims for damages.
The liability of harassers under the Federal Equal Treatment Act is independent of fault. This means that it does not matter whether someone explicitly intended to harass or not.
The university is liable if it culpably fails to take appropriate remedial action.
Discrimination by association: Harassment also occurs if a person is harassed on the basis of their close relationship to a person because of their gender (see § 4a para. 5 B-GlBG) or if a person is harassed on the basis of their close relationship to a person because of their ethnicity, religion or belief, age or sexual orientation (§ 13a para. 4 B-GlBG).
There is also a ban on discrimination in accordance with Section 20b B-GlBG, according to which employees may not be dismissed, terminated or otherwise discriminated against by the employer's representative in response to a complaint or the initiation of proceedings to enforce the equal treatment requirement. Other employees who act as witnesses or informants in proceedings or who support a complaint by employees may not be dismissed, terminated or otherwise disadvantaged in response to a complaint or the initiation of proceedings to enforce the equal treatment requirement.
Sexual harassment
In this format, we have decided to use the term "sexual harassment" instead of "sexualized harassment", as the former has become established both legally and in public.
Some experts also use the term "sexualized violence" (instead of "sexual violence"), as motives for sexualized violence are not primarily related to sexuality, but are predominantly demonstrations of superiority or power, not an expression of the uncontrollability of sexual urges (see e.g. gewaltinfo.at). This also applies to sexualized harassment as a possible form of sexualized violence.
Click here to go to the Federal Equal Treatment Act (B-GlBG), in particular: § 8 and § 42 para. 2.
When can we speak of sexual harassment?
The four characteristics described above are used in the legal assessment.
Sexualized harassment is not an approach based on reciprocity, but one that occurs against the will of one of the persons involved. It is a form of psychological and/or physical violence and abuse. Harassers try to demonstrate power and superiority and violate the dignity of the person concerned.
It can often seem difficult to categorize the experience. The boundary between sexual advances and the sexualized exercise of power can sometimes be difficult to discern. It can be helpful to reflect on the situation and listen carefully to yourself.
Sexuality is based on reciprocity. Acts that occur without the consent of one party can be considered sexualized harassment. Expressing disapproval of the act can be an important step, but is not a prerequisite for the legal classification of the behavior as sexual harassment and for taking legal action.
What counts as sexual harassment at the workplace or place of study?
Sexual harassment at work or university can take visual, verbal or physical forms. Examples of this are
- Pornographic images or posters of pin-ups in the work area (also on the PC or mouse pad)
- Staring, appraising looks
- Suggestive jokes, whistling behind
- Suggestive remarks, e.g. about the figure or sexual behavior in private life
- explicit verbal sexual comments
- unwanted invitations with a clear (named) intention
- Phone calls, letters, emails or text/Whatsapp messages with sexual innuendo
- Promises of professional benefits in return for sexual favors
- Threats of professional disadvantages in the event of sexual refusal
- Random/targeted physical touching (e.g. pinching and slapping buttocks)
- Request for sexual acts
- exhibitionist acts
- Rape and other criminal acts against sexual integrity and self-determination
Gender-based harassment
Gender-based harassment is judged according to the same parameters as described above, except that behavior from the gender-related sphere is set instead of the sexual sphere.
This includes both the male-female distinction and all variants of gender development in relation to male/female.
Examples include stereotypical discrimination and sayings, e.g. "Men are better at that", "Women are not suited for that", "Women have nothing to do with technology", "Men are too insensitive for that", so-called blonde jokes, "Inter? Then I'm a rocket now", "I almost took you for a woman", "You're not transsexual - you have a tic", etc. The assessment of whether a behavior is gender-related must always be judged on a case-by-case basis.
Click here to go to the Federal Equal Treatment Act (B-GlBG), please note in particular: § 8a and § 42 para. 2.
Harassment in connection with ethnicity, religion or belief, age or sexual orientation
This form of harassment is also characterized by the parameters described above. However, the harassing behavior is related to ethnicity, religion or ideology, age or sexual orientation.
Racist insults, LGBTIQ*-hostile comments, disrespect for people on the basis of their (younger or older) age can be prohibited harassment within the meaning of the Federal Equal Treatment Act.
Click here for the Federal Equal Treatment Act (B-GlBG), please note in particular: § 16 and § 42 para 2.