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Issue: June 2018

GERMANY - #MeToo in Germany - Employer's Obligations to Act

By: Dr André Zimmermann

(No) Issue in Germany?

The ongoing #metoo discussion certainly has arrived in Germany. However, so far, sexual harassment and misconduct haven't been a major topic of investigation or revelation in Germany. Other than in the U.S., in Germany no major cases of politicians, corporate executives or celebrities accused, sued, or terminated for inappropriate behavior have become publicly known. Only the case of a well-known award-winning TV and film director gained some traction in Germany.

Increased Awareness and Reporting

Even so, according to a survey conducted by YouGov on behalf of German news agency dpa, nearly one in five men in Germany say they have sexually harassed another person. In the survey 18 % of men say they have acted in a way that "could have been deemed inappropriate or sexually abusive" by the other person.

Ever since a growing number of women began revealing experiences of sexual harassment as part of the #MeToo movement in the U.S., women in Germany have also been speaking up. There is both, an increased awareness of the issues and reporting of incidents. Incidents now are being reported that might not have been reported pre-#MeToo.

How are employers supposed to handle such incidents and what – preventive and repressive – measures must employers take in Germany?

Legal Definition of Sexual Harassment

The German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) ("AGG") grants employees considerable rights and makes clear precisely what constitutes sexual harassment. It includes unwanted physical contact, leering, lewd looks, sexual comments, sexist jokes or the displaying of pornographic material. A single action may constitute sexual harassment.

Employer's Obligations to Act

German law is quite strict when it comes to workplace sexual harassment. Employers are required to protect employees from sexual harassment in the workplace – many employers do not seem to be aware of this and that they need to take action in order to comply.

The AGG prescribes a wide set of employers' obligations to prevent sexual harassment as well as obligations to react to detected sexual harassment. In general, the employer has the duty to take measures necessary to ensure protection against any discrimination which includes sexual harassment. This also includes preventive measures.

The employer shall draw attention to the inadmissibility of such discrimination in a suitable manner, in particular within the context of training and further training, and shall use their influence to ensure that such discrimination does not occur. Where violations occur, the employer shall take suitable, necessary and appropriate measures, assessed on a case-by-case basis, to put a stop to the discrimination; this may include issuing a warning, moving, relocating or dismissing the employee in question.

Shop Agreements as Preventive Measure

Since preventive measures against sexual harassment concern the business organization and the employee's behavior at work, the works council has co-determination rights under the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG).

Therefore, if a works council exists, it is advisable to include specific provisions on how to prevent sexual harassment in a shop agreement (Betriebsvereinbarung) which is binding upon all employees. However, according a survey by television show "Report Mainz", only eight out of 30 DAX companies have adopted shop agreements explicitly addressing sexual harassment. 

So what should be addressed in a shop agreement?

  • Such shop agreement should contain a general statement that, the employer is an equal opportunity employer and all employees, irrespective of gender, age, religion, nationality/origin, physical and psychological abilities, sexual orientation and political or trade union activity shall have the same rights and opportunities and no one shall be discriminated against or harassed.
  • Further, a shop agreement should identify and give examples of unwanted behavior which shall not be tolerated.
  • It should provide for and contain details on mandatory training for all employees (not only managers and executives) on how to avoid discrimination, sexual harassment, and bullying.
  • Also, such shop agreement would usually contain rules on how employees can complain and how confidentiality of the employee will be maintained.
  • Finally, there will be an outline of disciplinary actions (including dismissal) in case of a violation.

Policies Against Sexual Harassment

Where no works council exists, sexual harassment is typically addressed in policies or employee handbooks, generally providing for the same specifics as shop agreements. A workplace policy is a complex tool which allows businesses to actively combat sexual harassment in the workplace.

What Employers Need to do

The company's commitment to non-harassment, non-discrimination and non-violence, also regarding more subtle forms, and a zero tolerance policy are key. Shop agreements or policies should clearly identify the unwanted behavior, describe the preventive measures such as training and information, and clearly define the complaint and sanctions procedures. All employers need to address this, in order to fulfil their legal obligations and protect themselves against damage claims.

By: Dr André Zimmermann

Orrick, Herrington & Sutcliffe LLP