The employer is obliged to clarify possible or actual sexual harassment in the employment relationship. § Section 12 AGG (General Equal Treatment Act) regulates the employer’s obligations in the event of allegations of sexual harassment.
The employer must investigate a suspicion of sexual harassment. He must respond to a reasonable suspicion of sexual harassment and take action. If the employer fails to do so, he is threatened with claims for damages under section 15 (1) AGG.
It is difficult for employers to comply with the legal requirements. He must show a great deal of tact and cannot simply assume suspicions. He/she is in a constant conflict between the employees. If the suspected employee is suspected of sexual harassment without justification, this can also have consequences for the employer under criminal law, e.g. criminal liability for defamation under section 186 of the Social Code or the employer must pay damages to the employee.
But what is sexual harassment? Sexual harassment can – but does not have to – necessarily involve touching. Verbal or non-verbal harassment with a sexual reference is sufficient. So what to do? The employer must investigate the suspicion. It is not up to the harassed employee to try to find evidence himself. The employer must hear both sides. If the suspicion that an employee has sexually harassed another is confirmed, the employer must take the necessary measures in accordance with section 12 (3) AGG.
The General Equal Treatment Act also requires the employer to take preventive measures. This includes training and further education or notices or contributions on the intranet on the subject. It is not enough for the employer to be passive.
It is also possible for the employer to reach company agreements with its works council or to develop guidelines with the workforce that are published on the intranet.
If suspicions are confirmed, the employer must act. Courts currently tend to require a warning in every case. Whether the employer has to take more action, e.g. dismissal, depends to a large extent on the decision of the respective judge. This means a high risk for the employer.
It is advisable for the employer to avoid going to court if possible. If it is possible to reach a transfer agreement with the employee who committed the sexual harassment, this path should be taken. In doing so, the employee should not only be offered to work somewhere else, but the employer should try to fundamentally modify the employment contract, e.g. that he can order home office for the employee. It also makes sense to obtain the consent of the harassed persons and, if necessary, to impose a fine on the harassing employee. It is also conceivable that the harassed person could receive compensation for pain and suffering.
It is even more difficult for the employer to find the right course of action if the suspicion is not confirmed; it remains open or is refuted.
In this case, the employer cannot take any action against the allegedly harassing employee. On the other hand, for the harassed person the situation is highly difficult; there is a risk that he or she will immediately turn to the media in an overreaction. The employer is in a quandary.
One way would be to make a joint statement with the two employees. The agreement should point out that the aim is to combat sexual harassment on the other hand and to stop false reports. The parties involved could point out where clarification had failed.