Draft Commission recommendation C(91) 1397

Draft Commission Recommendation on the protection of the dignity of women and men at work

Approved with the following amendments:

Text proposed by the Commission Text amended by Parliament

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(Amendment No. 1) Title

Draft Commission Recommendation on the protection of the dignity of women and men at work.

Draft Commission Recommendation on the combating of sexual harassment and the protection of the dignity of women and men at work.

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(Amendment No. 2) Article 2, second paragraph (new)

It is recommended that Member States encourage the private sector to introduce initiatives at a similar level to the public sector.

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(Amendment No. 3) Article 3a (new)

It is recommended that Member States carry out an analysis of existing legal provisions and implement new legislation where necessary to enforce the recommendations in the Code of Practice.

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(Amendment No. 4) Article 4

The Member States shall inform the Commission within three years of the date of this Recommendation of the measures taken to give effect to it, in order to allow the Commission to draw up a report on all such measures.

The Member States shall inform the Commission within three years of the date of this Recommendation of the measures taken to give effect to it, in order to allow the Commission to draw up a report on all such measures. The Commission shall, within this period, ensure the widest possible circulation of the Code of Practice. The report should examine the degree of awareness of the Code, its perceived effectiveness, its degree of application and the extent of use in collective bargaining between the social partners.

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(Amendment No. 5) Annex, Title

Protecting the dignity of women and men at work.

Combating sexual harassment and protecting the dignity of women and men at work.

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(Amendment No. 6) Annex, Introduction, second paragraph

Its purpose is to give practical guidance to employers, trade unions, and employees on the protection of the dignity of women and men at work. The Code is intended to be applicable in both the public and the private sector and employers are encouraged to follow the recommendations contained in the Code in a way which is appropriate to the size and structure of their organisation. it may be particularly relevant for small and medium-sized enterprises to adapt some of the practical steps to their specific needs. Account may also need to be taken of national or local practices.

Its purpose is to give practical guidance to employers, trade unions, and employees on the protection of the dignity of women and men at work. The Code is intended to be applicable in both the public and the private sector and employers are encouraged to follow the recommendations contained in the Code in a way which is appropriate to the size and structure of their organisation. it may be particularly relevant for small and medium-sized enterprises to adapt some of the practical steps to their specific needs.

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(Amendment No. 22) Annex, Introduction, fourth paragraph

The expert report carried out on behalf of the Commission found that sexual harassment is a serious problem for many working women in the European Community and research in Member States has proven beyond doubt that sexual harassment at work is not an isolated phenomenon. On the contrary, it is clear that for millions of women in the European Community, sexual harassment is an unpleasant and unavoidable part of their working lives. Men too may suffer sexual harassment and should, of course, have the same rights as women to the protection of their dignity.

The expert report carried out on behalf of the Commission found that sexual harassment is a serious problem for many working women in the European Community and research in Member States has proven beyond doubt that sexual harassment at work is not an isolated phenomenon. On the contrary, it is clear that for millions of women in the European Community, sexual harassment is an unpleasant and unavoidable part of their working lives. Men too may suffer sexual harassment and should, of course, have the same rights as women to the protection of their dignity. Sexual harassment is often aggravated by racist attitudes towards persons belonging to ethnic minorities and by acts of intolerance on grounds of sexual orientation.

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(Amendment No. 7) Annex, Introduction, fifth paragraph

Some specific groups are particularly vulnerable to sexual harassment. Research in several Member States, which documents the link between the risk of sexual harassment and the recipient's perceived vulnerability, suggests that divorced and separated women, young women and new entrants to the labour market and those with irregular or precarious employment contracts, women in nontraditional jobs, women with disabilities, lesbians and women from racial minorities are disproportionately at risk. Gay men and young men are also vulnerable to harassment. It is undeniable that harassment on grounds of sexual orientation undermines the dignity at work of those affected and it is impossible to regard such harassment as appropriate workplace behaviour.

Some specific groups are particularly vulnerable to sexual harassment. Research in several Member States, which documents the link between the risk of sexual harassment and the recipient's perceived vulnerability, suggests that divorced and separated women, young women and new entrants to the labour market and those with irregular or precarious employment contracts, women in nontraditional jobs, women with disabilities, lesbians and women from racial minorities are disproportionately at risk. Gay men and young men are also vulnerable to harassment. It is undeniable that harassment on grounds of race or sexual orientation undermines the dignity at work of those affected and it is impossible to regard such harassment as appropriate workplace behaviour.

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(Amendment No. 21) Annex, chapter 2, first paragraph

Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct.

Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct which offends the dignity of the person (allusions, requests for sexual favours, physical abuse, display of pornographic images in the workplace).

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(Amendment No. 9) Annex, chapter 2, third paragraph

The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual.

The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual. Sexual harassment is discrimination based on sex, contravening the directives on the equal treatment of men and women.

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(Amendment No. 10) Annex, chapter 3, first paragraph

Conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work may be contrary to the principle of equal treatment. This principle means that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

Conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work may be contrary to the principle of equal treatment within the meaning of Articles 3, 4 and 5 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men as regards access to employment, vocational training and promotion, and working conditions. This principle means that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

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(Amendment No. 11) Annex, chapter 3, fifth paragraph a (new)

Men who suffer harassment should have the same rights as women. It must be recognised, however, that the recipients of sexual harassment are usually women. This is because sexual harassment is linked both to power and to gender roles. Therefore, the adoption of special measures to support women subjected to sexual harassment is appropriate positive action.

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(Amendment No. 12) Annex, chapter 5, section A(i), first paragraph a (new)

The employer is responsible for ensuring that management and employees jointly draft and circulate a written policy statement, setting out what is considered to be appropriate conduct.

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(Amendment No. 13) Annex, chapter 5, section A(i), second and third paragraphs

It is recommended that the policy statement makes clear what is considered inappropriate behaviour at work, and explains that such behaviour, in certain circumstances, may be unlawful. It is advisable for the statement to set out a positive duty on managers and supervisors to implement the policy and to take corrective action to ensure compliance with it. It should also place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

In addition, it is recommended that the statement explains the procedure which should be followed by employees subjected to sexual harassment at work in order to obtain assistance and to whom they should complain; that it contains an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially; and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment. It should also specify that appropriate disciplinary measures will be taken against employees found guilty of sexual harassment.

The policy statement should:

1. Make clear what is considered inappropriate behaviour at work.

2. Explain that such behaviour, in certain circumstances, may also be unlawful.

3. Set out the injured party's right to report unwanted conduct that is detrimental to the dignity of the individual.

4. Set out a positive duty on managers and supervisors to implement the policy and to take corrective action to ensure compliance with the policy.

5. Set out a positive duty on all employees to comply with the policy and ensure that their colleagues are treated with respect and dignity.

6. Explain the procedure which should be followed by employees subjected to sexual harassment at work in order to obtain assistance.

7. Undertake that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially.

8. State that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

9. Specify that appropriate disciplinary measures will be taken against employees found guilty of sexual harassment.

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(Amendment No. 14) Annex, chapter 5, section B(ii), first subparagraph

It is recommended that employers should designate someone to provide advice and assistance to employees subjected to sexual harassment, where possible, with responsibilities to assist in the resolution of any problems, whether through informal or formal means. It may be helpful if the officer is designated with the agreement of the trade unions or employees, as this is likely to enhance their acceptability. Such officers could be selected from personnel departments or equal opportunities departments for example. In some organizations they are designated as 'confidential counsellors' or 'sympathetic friends'. Often such a role may be played by someone from the employee's trade union or women's support groups.

It is recommended that employers should designate someone to provide a device and assistance to employees subjected to sexual harassment, where possible, with responsibilities to assist in the resolution of any problems, whether through informal or formal means. The officer shall be designated with the agreement of the trade unions and employees. The person appointed may be a shop steward or could be selected from personnel departments or equal opportunities departments. In some organizations they are designated as 'confidential counsellors' or 'sympathetic friends'. Often such a role may be played by someone from the employee's trade union or women's or men's support groups.

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(Amendment No. 15) Annex, chapter 5, section B(iv), second paragraph a (new)

It must be recognised that recounting the experience of sexual harassment is difficult and can damage the employee's dignity. Therefore, a complainant should not be required to repeatedly recount the events complained of where this is unnecessary.

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(Amendment No. 16) Annex, chapter 5, section B(v), second paragraph

Where a complaint is upheld and it is determined that it is necessary to relocate or transfer one party, consideration should be given, wherever practicable, to allowing the complainant to choose whether he or she wishes to remain in their post or be transferred to another location. No element of penalty should be seen to attach to a complainant whose complaint is upheld and in addition, where a complaint is upheld, the employer should monitor the situation to ensure that the harassment has stopped.

Where a complaint is upheld and it is determined that it is necessary to relocate or transfer one party, consideration should be given, wherever practicable, to allowing the complainant to choose whether he or she wishes to remain in their post or be transferred to another location. If a transfer to another location is the only satisfactory conclusion, the offender should be transferred rather than the complainant. No element of penalty should be seen to attach to a complainant whose complaint is upheld and in addition, where a complaint is upheld, the employer should monitor the situation to ensure that the harassment has stopped.

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(Amendment No. 17) Annex, chapter 5, section B(v), second paragraph a and b (new)

Where it has not been possible to resolve a complaint satisfactorily within an enterprise, the Member States should make provision for a judicial procedure to combat the form of sexual discrimination that amounts to sexual harassment.

Damages may be awarded to those subjected to this discrimination.

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(Amendment No. 18) Annex, chapter 6

Sexual harassment is a trade union issue as well as an issue for employers. It is recommended as good practice that trade unions formulate and issue clear policy statements on sexual harassment and take steps to raise awareness of the problem of sexual harassment in the workplace, in order to help create a climate in which it is neither condoned or ignored. Trade unions should consider declaring that sexual harassment is inappropriate behaviour, and educating members and officials about its consequences is recommended as good practice.

Trade unions should also raise the issue of sexual harassment with employers and ensure that adequate policies and procedures to protect the dignity of women and men at work are adopted in the organization. It is advisable for trade unions to inform members of their right not to be sexually harassed at work and provide members with clear guidance as to what to do if they are sexually harassed, including guidance on any relevant legal rights.

Trade unions should:

1. Formulate and issue clear policy statements on sexual harassment.

2. Raise awareness of the problem of sexual harassment and educate their members and officials as to its consequences through discussions, publications, posters and other means.

3. Raise the issue of sexual harassment with employers and ensure that adequate policies and procedures to protect the dignity of women and men at work are adopted.

4. Inform members of their right not to be sexually harassed at work and provide members with clear guidance as to what to do if they are sexually harassed, including guidance on any relevant legal rights.

5. Aim to give all officers and representatives training on equality issues, including dealing with sexual harassment.

6. Include information on dealing with sexual harassment and on the union's policy in union-sponsored or approved training course.

Where complaints arise, it is important for trade unions to treat them seriously and sympathetically and ensure that the complainant has an opportunity of representation if a complaint is to be pursued. Trade unions could consider designating specially-trained officials to advise and counsel members with complaints of sexual harassment and act on their behalf if required. This will provide a focal point for support. It is also a good idea to ensure that there are sufficient female representatives to support women subjected to sexual harassment. It is recommended too, where the trade union is representing both the complainant and the alleged harasser for the purpose of the complaints procedure, that it is made clear that the union is not condoning offensive behaviour by providing representation. In any event, the same official should not represent both parties.

It is good practice for the union to monitor and review the union's record in responding to complaints and in representing alleged harassers and the harassed, in order to ensure its responses are effective.

7. Treat complaints of sexual harassment seriously and sympathetically and ensure that the complainant has an opportunity of representation if a complaint is to be pursued. It is important to create an environment in which members feel able to raise such complaints knowing they will receive a sympathetic and supportive response from local union representatives.

8. Consider designating specially trained officials to advise and counsel members with complaints of sexual harassment and act on their behalf if required. This will provide a focal point for support. Trade unions should ensure that there are sufficient female representatives to support women subjected to sexual harassment.

9. Consider declaring that sexual harassment is inappropriate behaviour by a union member or any worker to another. Unions should advise members that they are expected to desist from any offensive conduct when it is made the subject of a complaint. Where a union member is accused of sexual harassment by another union member, it may be considered appropriate for the union to conciliate between the parties with the objective of terminating the offensive behaviour as quickly possible with the least recrimination. However, the union's priority should be to assist and represent the complainant.

10. Make clear, where it is representing both the complainant and the alleged harasser for the purpose of the complaints procedure, that the union is not condoning offensive behaviour by providing representation. In any event, the same official should not represent both parties.

11. Ensure, where the union represents an alleged harasser, that that representation concentrates on the facts. The complainant's relationships with anyone other than the alleged harasser should be regarded as irrelevant. Where formal disciplinary procedures are taken against a union member who has admitted harassing another union member, unions may wish to consider whether their representation of the member accused should be limited to ensuring that the hearing is conducted fairly.

12. Apply stringent penalties to union officials abusing their position of trust and power by sexually harassing a member or condoning sexual harassment by others.

13. Monitor and review the union's record in responding to complaints and in representing harassers and the harassed.

14. Let it be known among members that the union wishes to be informed of any incident of sexual harassment and that information will be kept confidential.

15. Let it be made clear that, by keeping a record of incidents, the harassed worker will assist in bringing any formal or informal action to a more effective conclusion.

16. Ensure that a member who has been subjected to harassment or has subjected someone else to harassment is offered counselling in coming to terms with the background to, and consequences of, the harassment.

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(Amendment No. 19) Annex, chapter 7, third paragraph

Employees who are themselves recipients of harassment should, where practicable, tell the harasser that the behaviour is unwanted and unacceptable. Once the offender understands clearly that the behaviour is unwelcome, this may be enough to put an end to it. If the behaviour is persisted in, employees should inform management and/or their employee representative through the appropriate channels and request assistance in stopping the harassment, whether through informal or formal means.

Employees who are themselves recipients of harassment should, where practicable, tell the harasser that the behaviour is unwanted and unacceptable. Once the offender understands clearly that the behaviour is unwelcome, this may be enough to put an end to it. If the behaviour is persisted in, employees should inform management and/or trade union or employee representative through the appropriate channels and request assistance in stopping the harassment, whether through informal or formal means.

A3-0264/91

LEGISLATIVE RESOLUTION

embodying the opinion of the European Parliament on the draft Commission recommendation on the protection of the dignity of women and men at work

The European Parliament,

- having regard to the Commission draft (C(91) 1397 - C3-0279/91),

- having regard to the report of the Committee on Women's Rights

(A3-0264/91),

1. Approves the Commission draft subject to Parliament's amendments and in accordance with the vote thereon;

2. Calls on the Commission to amend its draft accordingly;

3. Instructs its President to forward this opinion to the Council and Commission.