Introduction
Over five years ago the New York Times published an article on a high profile scandal involving Harvey Weinstein, media magnate in Hollywood, sexually harassing dozens of women over dozens of years.[1] The article was a starting gun to the #MeToo movement, in which countless women from all over the world shared their sexual harassment experiences via social media.[2] This movement showcased the inconvenient truth which hereafter would be inevitable: sexual harassment occurs, in all dimensions, in all forms, and all too often.
In the Netherlands, the issue of sexual harassment is still hot due to several scandals.[3] Several research reports indicate that the scandals are the tip of the iceberg and that sexual harassment is a serious problem in the Netherlands.[4] The latest statistics show that 1 out of 8 Dutch persons, ages 16 and above, reported in 2022 to have experienced a form of sexual harassing behaviour during the last 12 months.[5] With over half of young women (52%) reporting such behaviour, women are overly presented in these numbers. An area where sexual harassment occurs often, is the workplace.[6]
In this blog, I would like to offer you more information on the Dutch legal framework regarding sexual harassment in the workplace, some of the bottlenecks in practice and how I hope my research will contribute to a solution.
Dutch legal framework
Sexual harassment in the workplace is regulated in equal treatment law, occupational health and safety law and criminal law.[7] Equal treatment law defines sexual harassment as ‘any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’.[8] Equal treatment law also protects any employee raising a claim on sexual harassment against any adverse treatment.[9] Additionally, if the employee establishes facts and/or circumstances from which sexual harassment is presumed to have taken place, it is upon the responding party to prove the sexual harassment has not taken place.[10] Occupational health and safety law obliges employers to provide a safe working environment for employees, which includes protection against sexual harassment.[11] Employers are also obliged under equal treatment law to take action when sexual harassment has occurred.[12]
Bottlenecks
There are a few problems arising in practice with the Dutch legal framework in connection to sexual harassment. I will only name a few.[13] Firstly, the definition may seem clear prima facie. However, a closer look reveals some interpretation issues. For example, what can be considered ‘conduct of a sexual nature’? In this sense it is important to note that the Dutch definition deviates from the EU definition of sexual harassment. The definition given in the Recast Directive states sexual harassment as being ‘unwanted … conduct’.[14] The Dutch legislator intentionally left out the element of ‘unwanted’, because “this could lead to undesirable discussions about whether a complainant gave the impression of consenting to certain behaviour”[15]and felt that including this element might lead to “undermining the legal protection of those being harassed”.[16] However, the only case on sexual harassment ruled by the highest court in the Netherlands seems to suggest that not including the element ‘unwanted’ in the definition may also lead to a limitation of legal protection of victims, a result the Dutch legislator was particularly trying to avoid. In this case the Dutch Supreme Court ruled that, although the feelings of the victim were not to be considered, the fact that the behaviour had no sexual content for the alleged perpetrator may be taken into account.[17]
Furthermore, judgments on sexual harassment in lower courts show that the legal definition does not give hold to assessing whether certain behaviours qualify as sexual harassment.[18] When it comes to sexual harassment, personal boundaries are different. Which can be experienced as sexually harassing for one person, might not be considered as sexual harassing behaviour by another. The legal definition is open to multiple interpretations, which makes it possible to have different legal outcomes in a case concerning sexual harassment. This is another problem, because it means the possibility of having two comparable behaviours in different contexts, with one case concluding sexual harassment has occurred, while the same behaviour in another case is not considered as sexual harassment. In short: the nature of sexual harassment is what makes it problematic to give a (legally) objective judgment.
The legal uncertainty that results from this affects many. It is uncertain for employees which behaviours are legally impermissible. Employers may find it difficult to assess which action is necessary. The lack of (legal) action can cause the ‘victim’ to be confronted with the ‘perpetrator’ in the workplace after making a claim. That may signal that reporting unwanted behaviour will not lead to a safer workplace.
This is a problem. The lack of a clear legal framework could mean a serious shortfall in the protection against sexual harassment. Sexual harassment can cause severe mental health problems[19] and can lead to employees leaving the labour market (indefinitely). Both consequences mean the psychological and financial cost of sexual harassment can be great for society. A clear legal framework would thus benefit the whole society.
Final consideration
For me, the abovementioned problems are the motivation for my PhD thesis. I will try to determine which are exactly the bottlenecks within the current legal concept of sexual harassment in the Netherlands and attempt to find possible solutions for these bottlenecks in other legal systems. The way I see it, a clear legal concept of which behaviours constitute sexual harassment could be the starting point for fixing all other gaps in the Dutch legal system regarding this issue. Five years after #MeToo, I think we are more than ready for improvement.
Courtesy of: Lydia de Groot, PhD Candidate, University of Groningen.
[1] J. Kantor & M. Twohey, ‘Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades’, the New York Times 5 October 2017.
[2] E. Chuck, ‘#MeToo: Alyssa Milano promotes hashtag that becomes anti-harassment rallying cry’, NBC News 16 October 2017.
[3] D. Wolthekker, ‘#MeToo scandal explodes at law faculty’, folia.nl; C. Moses, ‘Dutch Soccer Star Steps Down After Admitting to Inappropriate Texts’, the New York Times 5 February 2022; C. Moses, ‘#MeToo Scandal at a Dutch TV Show Spurs a Sexual Assault Reckoning’, the New York Times 31 January 2022.
[4] See explicitly: research report on the media sector: ‘Over de grens, op weg naar een gedeelde cultuur’, rijksoverheid.nl; research report on the academic sector: ‘Sociale veiligheid in de wetenschap’, rijksoverheid.nl.
[5] Sexual harassing behaviour is meant to encompass online and offline sexual harassment and physical sexual violence. ‘Helft jonge vrouwen slachtoffer seksueel grensoverschrijdend gedrag 2022’, cbs.nl.
[6] In the aforementioned statistics, 19,4% out of victims mentioned it was a colleague responsible for the offline sexual harassment, 8% for the online sexual harassment and 9,6% for physical sexual violence. Out of the victims, 3,8% mentioned it was a supervisor responsible for the offline sexual harassment, 1,3% for the online sexual harassment and 1,9% for the physical sexual violence.
[7] As of today, only the physical forms of sexual harassment, i.e. sexual assault and rape, are punishable by criminal law (article 242 and 246 Criminal Code (Wetboek van Strafrecht)). However, there is a bill proposal, involving non-physical forms of sexual harassment in public to become a criminally punishable offence as well (wetsvoorstel Seksuele Misdrijven, rijksoverheid.nl).
[8] Article 7:646 section 8 Civil Code (Burgerlijk Wetboek), article 1A General Law on Equal Treatment (Algemene Wet Gelijke Behandeling) and article 1A Law on Equal Treatment between Men and Women (Wet gelijke behandeling mannen en vrouwen).
[9] Article 7:646 section 9 Civil Code.
[10] Article 7:646 section 12 Civil Code.
[11] Article 3 Working Conditions Act (Arbeidsomstandighedenwet).
[12] Article 1b Law on Equal Treatment between Men and Women, article 5 section 1 (h) General Law on Equal Treatment, article 7:646 section 1, article 7:611 and article 7:658 Civil Code. See also Kamerstukken II ‘Parliamentary Papers’ 2005/06, 30237, no. 6, p. 4.
[13] Because the length of the blog will not allow it, I would like to mention here that the legal issue of sexual harassment is multifaceted, meaning we also have problems with i) victims are dependent on their employer to take action and cannot challenge colleagues directly under equal treatment law. They can start a civil procedure with a high threshold for proof, which means a successful action in practice is highly unlikely; ii) there is no legal framework for the procedure after a sexual harassment claim, resulting in vague practices where both the victim as the alleged perpetrator could encounter psychological damage by the procedure itself; iii) there is no legal framework for the disciplinary action or measure to be taken by the employer. The law requires of employers to take a ‘proportionate’ action. Because of the vagueness described under ii) and iii), it is uncertain how courts will rule on actions taken by employers. A case in which the court views the steps taken by the employer in the process to be incorrect, is likely to result in high compensation claims for the accused party. This may weaken the incentive for employers to pursue action after a sexual harassment claim has been made. It could also mean that the victim can again be confronted in the workplace with their ‘perpetrator’.
[14] Article 2 section 1 (d) of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).
[15] Kamerstukken II 2005/06, 30 237, no. 6, p. 8; see also Kamerstukken I 2002/03, 28 770, no. 5, p. 19.
[16] See explicitly: Kamerstukken II 2005/06, 30237, no. 3, p. 12.
[17] Hoge Raad (Supreme Court) 10 July 2009, ECLI:NL:HR:2009:BI4209 (Leprastichting), recital 3.3.
[18] Most of these judgments are about dismissal procedures, in which different circumstances are weighed and where courts conclude there has been unwanted or harassing behaviour, without using the legal definition of sexual harassment. See explicitly L.C. de Groot, Seksuele intimidatie en de beschuldigde werknemer, Weert: Celsus Juridische Uitgeverij 2022.
[19] N. Spector, ‘The Hidden Health Effects of Sexual Harassment’, nbcnews.com. Sexual harassment may also lead to suicide, L.L. Magnussen Hanson e.a. ‘Work related sexual harassment and risk of suicide and suicide attempts: prospective cohort study’, British Medical Journal 2020/370.