Sexual harassment and harassment based on sex are forms of discrimination. They are serious conduct that the law prohibits and that employers must prevent. This lesson explains what they are and how to recognise them.
The two legal definitions
Ley Orgánica 3/2007 defines them in article 7:
- Sexual harassment: any verbal or physical behaviour of a sexual nature that has the purpose or effect of violating a person's dignity, in particular when it creates an intimidating, degrading or offensive environment.
- Harassment based on sex: any behaviour carried out because of a person's sex, with the purpose or effect of violating their dignity and creating that same environment.
Both are discriminatory in every case. Note one key idea: it is enough that the conduct has the effect of offending. The person behind it does not need to have intended harm.
Examples
Sexual harassment
- Comments, jokes or compliments about someone's body or sex life.
- Messages, images or videos of a sexual nature sent by phone, email or social media.
- Persistent staring, unwanted touching, hugs or kisses.
- Repeated invitations or pressure to go on a date or start a relationship.
- Promising something (a promotion, a better shift) in exchange for sex, or threatening harm if the answer is no.
Harassment based on sex
- Jokes or disparaging remarks about women or about men.
- Denying tasks, training or responsibility because someone is a woman or a man.
- Treating a worker badly because she is pregnant or has asked for reduced hours.
- Ridiculing someone for not fitting a role expected of their sex.
Two types of sexual harassment
- Sexual blackmail: a right or an expectation of a right (a contract, a promotion, keeping the job) is made conditional on accepting the conduct. The law also treats it as discrimination (article 7).
- Environmental harassment: the conduct creates a humiliating or intimidating environment, even without a specific threat.
What does not matter
- The place: it can happen in the office, on a building site, on a business trip, at a company dinner or by messages outside working hours.
- Who does it: a boss, a colleague, a subordinate, a customer or a supplier.
- Whether the person "did not say no": silence, fear or dependence on the job are not consent.
- Whether it is presented as a joke or a compliment. What counts is the effect on the person who receives it.
What Ley Orgánica 10/2022 changed
The "only yes means yes" law (comprehensive guarantee of sexual freedom) strengthens prevention at work:
- Employers must promote working conditions that prevent offences and other conduct against sexual freedom and moral integrity, including in the digital sphere.
- They must have specific procedures to prevent such conduct and to handle complaints, including about conduct in the digital sphere (article 12).
- They must raise awareness among, and train, all staff, whatever their type of contract.
- The risk assessment of jobs held by women must consider sexual violence.
- The law also amended the Estatuto de los Trabajadores: victims of sexual violence have their own employment rights (reduced or rearranged hours, a change of workplace, suspension of the contract), and dismissal for exercising them is void.
Consequences
- The employer can be penalised: sexual harassment occurring within the employer's sphere of management is a very serious infringement under LISOS (article 8.13). Harassment based on sex is too, when the employer knows of it and does not act (article 8.13 bis).
- The person who harasses can be dismissed for disciplinary reasons: the Estatuto de los Trabajadores provides for dismissal for sexual harassment and harassment based on sex (article 54.2.g).
- Depending on the facts, it can also be a crime (the Criminal Code defines sexual harassment in article 184).
If it happens to you or to someone close to you
It is not your fault. Keep evidence (messages, emails, dates, witnesses' names) and use your employer's protocol or to the workers' representatives. You will see how in the final lessons.