Many expressions used in everyday language can have a negative impact on those who receive them. The office and the workplace are not always free from prejudice, discrimination or favouritism. In fact, the workplace is one of the most common settings in which these kinds of practices and behaviours occur.
How can I report such practices in my workplace?
How can I assert my rights?
Written by Cyrielle Agut
Employment and tax lawyer
1. Definition of sexual harassment in the workplace
Sexual harassment is understood as any verbal, non-verbal or physical conduct of a sexual nature that is carried out with the purpose or effect of undermining a person's dignity, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment.
Although definitions may vary from one piece of legislation to another, the following elements are always present:
- Conduct that is unwanted by the person on the receiving end.
- Conduct of a sexual nature or with sexual connotations.
Conduct of a sexual nature encompasses a very broad range of behaviours.
Sexual harassment is considered discriminatory and is expressly prohibited by law. Both the Workers' Statute and the Basic Statute of Public Employees, the Law on Infringements and Sanctions in the Social Order, and the Organic Law 3/2007 of 22 March on the effective equality of women and men classify sexual harassment as a serious infringement, which may constitute grounds for disciplinary dismissal of the harasser and just cause for the victim to seek dissolution of the employment contract.
Second. — Obligations of the company
The company must fulfil several obligations when faced with situations of harassment, specifically:
- To guarantee employees' rights within the employment relationship — including freedom from sexual discrimination, physical and psychological integrity, adequate health and safety policies, and respect for their privacy and personal dignity.
- To adopt measures designed to safeguard these rights.
- To foster a working environment that prevents harassment.
- To put in place specific procedures for the prevention of harassment and to handle reports and complaints raised by employees.
If you are an employer, we invite you to contact us for further information on implementing and setting up a workplace harassment protocol (covering both moral and/or sexual harassment) within your company, via the following link:
Preventive measure for your company: Harassment Protocol
Third. — Rights of the employee who is a victim of harassment
Employees have the right to a healthy working environment and to be free from harassment.
For this reason, all other employees within the company also have the right to report potential situations of harassment.
From an employment law perspective, where the employee has already notified the company of the situation they have experienced, the conduct has been formally reported through internal channels, and the company has carried out an investigation — yet the harassment has not ceased and/or the sanction imposed has proved insufficient — the affected person always has the option of pursuing an external course of action outside the company, whether through administrative or judicial channels.
We always advise our clients to pursue the matter through administrative channels first. In such cases, the affected employee can file a complaint with the Labour Inspectorate, identifying the alleged harasser.
Beyond having priority status, the Labour Inspectorate is expected to act urgently — investigating the situation and establishing what steps, if any, the company took upon becoming aware of the harassment.
The next step would be to pursue judicial proceedings, before the employment and/or criminal courts.
In employment proceedings before the Social Jurisdiction, our approach to defending our clients' interests involves pursuing the following outcomes:
- Recognition and declaration of whether the claimant's fundamental rights have been infringed.
- Recognition and declaration of the nullity of the employer's internal conduct in handling the internal investigation procedure and in deciding whether or not to impose a sanction on the harasser.
- An order for the immediate cessation of conduct contrary to the harassed employee's fundamental rights.
- Restoration of the victim's rights in full, and reinstatement to the position they were in prior to the infringement of their fundamental right.
- Redress for the harm caused by the harassing employee's conduct, including the corresponding compensation.
- Where appropriate, recognition and declaration of the termination of the employment relationship under the procedure set out in Article 50 of the Workers' Statute.
We invite you to read the guide on the "Protocol for the Prevention and Management of Sexual Harassment and Gender-Based Harassment in the company", published by the Government of Catalonia (Generalitat de Catalunya).
Department of Labour: Protocol for the Prevention and Management of Sexual Harassment
Fourth.- What case law says on the matter
Below is a summary of cases brought before the Spanish employment courts in recent years. It is worth emphasising that further measures still need to be developed to eradicate these behaviours in the workplace:
- Compensation awarded to a female employee who received letters with sexual content: ruling of the High Court of Justice of the Principality of Asturias, Social Chamber, 1795/2015, dated 30 September 2015, Appeal No. 1932/2015
Facts:
On 6 January 2015, a female employee received a letter signed by the director of the company, the contents of which were as follows:
"Dear Three Kings: I would like you to bring me a good black female (I love black women)…!", along with various other expressions of a sexual nature.
The employee reported the contents of the letter to the company and was subsequently dismissed following the incident.
In his defence, the employer submitted several photographs showing the employee and himself appearing to smile together.
The Court's reasoning:
The Court held that the letter, written in the employer's own hand, was sufficient to establish the reality of the harassment suffered by the employee, who had been treated for anxiety attacks.
Regarding the photographs, the Court noted that there was no relevant connection whatsoever between appearing in a selfie together and any form of consent to the demeaning conduct engaged in by the employer.
ruling ruling:
The Court found the employer's conduct to be both unexplained and inexplicable, ordering the defendant to pay compensation of €15,000 to the employee for sexual harassment and harassment on grounds of sex, and ordering the company to reinstate the employee immediately.
- Conviction of a veteran Civil Guard officer for sexually harassing a junior female colleague: ruling of the Supreme Court, Second Chamber (Criminal), 721/2015, of 22 October 2015.
Facts: a veteran Civil Guard officer made repeated sexual comments and advances towards a young female colleague, which she rejected.
When she refused to accept his sexual advances, the veteran officer reacted with repeated anger, causing the young woman to develop a psychological condition for which she required medication.
Court's reasoning:
"Sexual harassment, as an attack on the individual's free decision not to be drawn into an unwanted sexual relationship, violates a person's intimate sphere. However, it also causes harm in the workplace or educational setting — its effects are not purely individual but collective, since it affects the status of all workers or students, primarily women, though not exclusively, and is detrimental to society as a whole."
ruling's decision: the Supreme Court sentenced the Civil Guard officer to a custodial sentence of 2 years.
- dismissal of a hotel bar manager: ruling of the High Court of Justice of the Canary Islands, Las Palmas de Gran Canaria, Social Chamber, of 6 March 2018, appeal 1648/2017
Facts: the bar manager made comments and remarks such as "you're looking great!" and touched the hips of one of his female employees, claiming in his defence that he was merely trying to "create a good atmosphere among colleagues".
The company proceeded with the disciplinary dismissal of the bar manager, a decision the employee chose to challenge on the grounds that it constituted unfair dismissal.
Court's reasoning:
"The jokes and sexual conduct in question were objectively inappropriate, and could only be considered acceptable if the person to whom they were directed had given their consent."
Therefore, if a male employee addresses his female colleagues using sexually suggestive language accompanied by unwanted physical contact, this constitutes sanctionable conduct — even if it is directed at only one particular employee.
ruling:
The Chamber found the disciplinary dismissal for sexual harassment to be fair.
- disciplinary dismissal of an employee for making sexually explicit comments to his female manager: ruling of the High Court of Justice (TSJ) of Castilla y León, Valladolid, Social Division, 19 April 2018, appeal 215/2015
Facts:
The dismissed employee repeatedly pressured his female manager to wear nail polish and high heels, and made comments and engaged in behaviour of a sexual nature towards her, including remarks such as: "I'm going to take a while to have my nap because I have a pain in my balls — they're full and I'm going to have to unload", and "I want to smack her arse with a carton of cigarettes in front of a sales rep", as well as other instances of unwanted physical contact.
In his defence, the employee invoked freedom of expression.
Court's reasoning:
The Chamber found that the acts and behaviour in question fell outside the scope of freedom of expression.
ruling:
The Chamber found the disciplinary dismissal for sexual harassment to be fair.
Raising general awareness about workplace harassment across the entire company — both management and staff — is essential as a first step towards understanding the full extent of the problem.
This is what Conesa Legal is committed to affirming — working hand in hand with employers on the implementation of equality plans and preventive protocols against moral and sexual harassment, as well as with employees to defend their rights.
For further information, please contact our employment lawyers directly:
