Sexual harassment in the workplace in Germany

Sexual harassment in the workplace is prohibited under Section 2(1) (lit. 1-4) of the General Equal Treatment Act from 2006 (Allgemeines Gleichbehandlungsgesetz). The legal definition of sexual harassment in Section 3(4) of the General Equal Treatment Act is “unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, which takes place with the purpose or effect of violating the dignity of the person concerned, in particular where it creates an intimidating, hostile, degrading, humiliating, or offensive environment”.

Since 2016, sexual harassment in the form of physical contact can be a criminal offence under Section 184i of the German Criminal Code (StGB) and is punishable by imprisonment of up to two years and/or a fine.

According to Section 12(1) of the General Equal Treatment Act, employers must take preventive measures to protect employees from sexual harassment. However, the legislation does not specify which measures employers should take. Such measures could include training and company agreements. The law outlines in Section 12(3) of the General Equal Treatment Act a variety of appropriate measures that may be taken against an employee who harasses a colleague, including transferring, relocating, or dismissing the employee. When employees are sexually harassed by third parties while performing their duties, under Section 12(4) of the General Equal Treatment Act, the employer must take suitable, necessary, and appropriate measures, chosen on a case-by-case basis, to protect the employee in question.

Awareness of sexual harassment issues has increased considerably as a result of the #MeToo movement. Behaviour patterns that come even close to sexual harassment are taken seriously. Complaints are addressed promptly, and the vast majority of companies vigorously pursue complaints brought forward by employees – both in terms of investigation and prosecution. In practice, however, termination without notice and criminal charges are rare due to a lack of corresponding incidents. According to the first comprehensive report by the Federal Anti-Discrimination Agency, there has been an increase in complaints against colleagues. 

According to Section 13 of the General Equal Treatment Act, employees have the right to lodge a complaint with the competent authority of the company if they feel they have been sexually harassed. Under Section 16 of the General Equal Treatment Act, the employee may not be disadvantaged for lodging such a complaint. Additionally, under Section 14 of the General Equal Treatment Act, an employee affected by sexual harassment has the right to refuse to work without loss of pay if the employer does not take any measures, or takes obviously inappropriate measures, to end the harassment at the workplace.

Under Section 15(1) of the General Equal Treatment Act, an individual who has suffered harassment in the workplace has the right to claim damages (material harm, such as loss of earnings) and compensation (non-material harm, such as injury to feelings) against both the employer and the individual employee who harassed them. The employer is only liable for the harassment of employees or third parties if they are at fault. This is not typically the case when harassment first occurs. However, in cases of recurrence, the employer becomes liable if they fail to take appropriate measures to protect the harassed individual from further sexual harassment. The employer’s fault is presumed under Section 15(1) of the General Equal Treatment Act.

If the employer is at fault, a contractual claim for damages against the employer may also be considered. Additionally, if the harassment injures the person concerned in their health or general personal rights, the injured party can claim damages and injunctive relief from the harasser under the Civil Code. 

Green to amber.

In 2018, the institution Forsa conducted a survey in which 26% of the women interviewed said they had been sexually harassed in the workplace. Of these, 44% dealt with the incidents by speaking to the accused person, their supervisor, or by informing the works council. However, the remaining 56% chose not to take any action.

Most of the DAX 30 companies do not provide specific numbers regarding sexual harassment cases. Only two companies, Beiersdorf and Continental, reported a total of 13 cases in 2018. Experts believe that only a small number of victims report harassment, let alone file complaints to a labour court.

Companies are increasingly seeking advice on preventive measures against sexual harassment within compliance structures. This includes various steps a company can take to prevent sexual harassment and to change the company "climate". This is typically achieved through a tiered, "escalating" model, which may include components such as a code of conduct, an ombudsman, or a whistleblower hotline.

The Federal Anti-Discrimination Agency, in a 2022 study, reported that “approximately one in eleven gainfully employed persons has been affected by sexual harassment at the workplace within the last three years.” It also became evident that these were rarely isolated incidents, with 83% of respondents experiencing more than one such situation.

 The same study highlighted, “there is a high risk of sexual harassment in all sectors." Despite the low number of reported cases, the study provided more insight into certain sectors. According to the findings, the most affected sectors are health and social services (29%), manufacturing (11%), trade (12%), transport (6%), water and energy supply, as well as childcare and education (10%).

The report by the Federal Anti-Discrimination Agency also showed that men are significantly less affected by sexual harassment than women, with only 5% of men experiencing such incidents. At the same time, the study found that sexual harassment in the workplace is predominantly perpetrated by males, with 82% of affected individuals stating that the harassers were exclusively or predominantly men.

In our experience, sexual harassment more frequently affects women in subordinate positions to the perpetrators. Direct verbal or physical assaults are typically isolated incidents and often occur during company events outside working hours, such as company celebrations, under the influence of alcohol, or during professional team-building activities. Notably, retaliation against employees who reject sexual advances or harassment—such as obstructing their career advancement or discrimination in salary rounds—should not be overlooked.