What is sexual harassment and what is flirting in the workplace?

Together with approximately 100 other women from the French cultural life, the 74-year movie icon Catherine Deneuve has warned about, what they see as a ”witch hunt” against men.

The French actress has set both the French government and a group of younger feminists against herself after she has accused the #metoo movement of going too far.

In an open letter in the newspaper Le Monde, together with approximately 100 other women from the French cultural life, Catherine Deneuve has written about what they consider to be a “witch hunt” on men and a threat to French flirting. “Men have been summarily punished, forced to leave their jobs if they have just touched somebody’s knees or tried to steal a kiss.” Since then, she has commented to the newspaper Libération that it has never been her intention to offend victims of sexual harassment.

The right to a fair trial is a fundamental right and a classic human right. It implies, among other things, that everyone is equal to the law and to the courts. It also means that individuals have the right to have their case determined by a competent, independent and impartial court. There are also a number of minimum guarantees for persons who are charged or prosecuted in criminal proceedings. Does Catherine Deneuve have a point, and is it true that men are judged in the media without a fair trial of the case? In many cases, the situation has occurred in an employment relationship, including in situations where a leader has exercised his power to terrorize and exploit. The crimes can occur from men against women, from women against men and between people of the same sex.

For many different reasons, often, cases of sexual harassment do not end up in court.

If there is suspicion or an accusation of sexual harassment, it is important that both the employee who is violated and the colleague who is suspected or accused, receive a fair treatment. If the case is not suitable for settlement in the courts, among other things because the courts do not conduct investigations and/or because you cannot wait for the case to go to court, you can initiate a legal investigation to uncover what has happened. It is obvious that both the employee who may have been exposed to harassment and the colleague who is suspected or accused, must have the opportunity to comment, preferably with the assistance of a counsel, and that any potential documentary evidence in the form of emails, text and so on, is presented in a way that makes it possible for both parties to explain the content. It may also be necessary to interview other colleagues in the company. The battle against sexual harassment should be fair, and should be taken seriously, so neither one of the parties are subject to a “witch-hunt”. The media have contributed to creating awareness of the harassment cases, which is good, but when it comes to concrete cases in the companies, it is the responsibility of the company to ensure proper case management.

There is a difference between sexual harassment and a flirt. Sexual harassment is crossing other people’s sexual boundaries. It may be in the shape of comments about another person’s body which is of a sexual nature, display of photos with sexual content, emails, pictures, and texts and/or physical touches/abuse and sexual references to sex or demands for sex. It is forbidden due to existing rules. In employment situations, sexual harassment is especially problematic if a person exploits that he/she has a superior position or there is a dependency relationship.

A flirt is typically when you try to attract attention from the receiver in an attempt to charm your way in. It’s okay as long as you stay within the limit of flirting.

As an employer, it is worth mentioning that there is an obligation to prevent sexual harassment in the workplace. It may be useful to have a policy for harassment and to raise the problem openly. A policy, which can give guidelines for when comments about hair, looks, clothes and other personal relations can be considered as harassment, may be a good idea. The policy may be a part of an employee satisfaction and bully policy. It may also be sensible to have a couples’ policy in the workplace to avoid rumours or suspicions that employees receive a particularly beneficial treatment because they are couples, or other forms of nepotism.

There can be jobs where the tone is particularly impudent, e.g. in restaurants, at workshops, construction sites or where the work is otherwise connected to something physical, be it in hospitals or in the artistic world. However, there are no specific rules for workplaces with a fresh or directly harsh tone.

Hindering sexual harassment in the workplace relates to the working environment, which is regulated by the working environment law, collective agreements and the staff policies that the company has determined. The rules for the work environment is regulated by law and by agreement – collectively and individually. There is thus no free rein in relation to which rules apply to the individual workplace.

Specifically, companies can do the following:

– Establish a good anti-bullying and anti-discrimination policy and ensure that the employees know the rules,

– Consider the need for a policy on couples in the workplace and implement it,

– Make sure to discuss the mental working environment openly as a part of the annual performance and development interviews,

– Should cases arise, make sure to have the case properly investigated, possibly with the involvement of external assistance, determine what is the correct solution to the case, including taking into account the content of the rules, decorum demands, etc. and, if necessary, initiate necessary sanctions in the form of conversation, written warning, termination or, at worst, termination without notice. Severance agreements may in this context be an alternative to a termination. If necessary, ensure that those involved get the necessary tools and assistance, e.g. visit to an occupational psychologist, coach or other relevant course.