This project will examine the way the Danish courts deals with cases regarding sexual harassment in the workplace. To do so, the project will apply the legal method to find the legal state regarding the Equal Treatment Act.
The project shows that a number of different approaches can be taken in regard to sexual harassment cases, but the project mainly focuses on the approach using the Equal Treatment Act. In this regard the project has, using the analysis of court practice, concluded that the court uses three different assessments when dealing with sexual harassment cases. These assessments include an assessment of the objective conditions of the case, the subjective conditions regarding the harassed and the subjective conditions regarding the harasser.
The analysis regarding the objective conditions shows that the courts use a legal threshold where acts they deem under it doesn’t constitute sexual harassment. This threshold has been hard to determine, however it is often cases of verbal harassment which fall under this. In regard to written sexual harassment, the courts have changed their assessment and are now more likely now to constitute sexual harassment. Another change that the courts have established is in regard to physical harassment where cases of singular incidents previously would not have constituted sexual harassment but are now seen as severe cases of sexual harassment. Furthermore, the courts also see the location where the harassment has occurred as a relevant factor in this assessment. If the harassment occurred in a workplace where the harassed also lives, this is seen as an aggravating circumstance. Furthermore, the project can conclude that it is not relevant whether or not the sexual harassment has occurred on the physical workplace or not. A condition which historically has been given a great amount of attention is the general tone of the workplace. This has however in more recent practice become a condition which no longer can be applied as a mitigating circumstance. It can however still be a condition which in and of itself can constitute sexual harassment if it is severe enough. The last condition the project has examined in regard to the objective assessment is whether the harassment was done by the employer or another employee. In regard to this the project conclude that the fact that the employer is the harasser is an aggravating circumstance.
In regard to the subjective conditions of the harassed, the project has examined a number of different conditions. The first condition which the project examines is evaluations by medical professionals. These are strong forms of evidence in regard to the harassed’s subjective state of mind and as such are often used. Another condition which is examined is the harassed’s ethnic background. These can affect the assessment of the subjective state of mind of the harassed as their background might affect their ability to refuse the harasser. Likewise, the harassed’s age is a condition which similarly affect the assessment as younger people also are less capable of refusing. In regard to age, the analysis of the legal practice also shows that the situation where a young person who are employed in an educational situation and in this employment experience harassment is another aggravating circumstance as these have a dependency on their employment to complete their education. Furthermore, the project concludes that the passivity of the harassed can be a condition which might lead to a forfeiture of rights, as well as being used in the assessment of the harassed’s subjective state of mind. Historically, it didn’t require much time before the courts constituted passivity, however newer practice seems more lenient.
About the analysis of the assessment of the subjective conditions regarding the harassed, the project found certain conditions which the courts were reluctant to use. The first of these is the harassed’s prior knowledge of the possibility of being harassed and the second is the risk of being fired due to other circumstances.
The last assessment which the project has found the courts uses is the assessment of the harasser's subjective conditions. This is an assessment which is court made and is not present in the Equal Treatment Act and it seems to be receding in relevance in newer practice. In regard to the assessment of the harasser’s subjective conditions, the courts use the harassed’s refusal of the harassment to ascertain whether or not the harasser knew or should have known that the harassment was unwanted. Historically, the courts were reluctant to state that the harasser should have known it was unwanted solely based on the refusal, but in newer practice they are more likely to do so.