Sexual Harassment at Work – What Can I Do and How Should I Act?

მედია აპრილი

Workplace sexual harassment takes many different forms. It can come from a coworker, a supervisor,  a customer or client. Sexual harassment ranges from unwanted touching, inappropriate comments or jokes, or superiors promising certain benefits in exchange for sexual favors.

It is important to understand that sexual harassment does not have to be directly related to “sex”. Sexual harassment can take the form of provocative, threatening, or offensive comments based mostly on stereotypes (e.g, how certain people “are” or “should be like”), as well as bullying a person or group of people because of their sex, gender identity, or sexual orientation.

Sexual harassment often thematically refers to sex and something else at the same time — for example, origin, skin or hair color, age, and so on.

Examples of sexual harassment may include:

  • Unwanted requests for sexual behavior or dating;
  • Unwanted sexually explicit comments about someone’s body or appearance;
  • Unwanted nicknames, for example, “doll”, “sweetie”, “little”, etc.
  • Mocking or insulting a person because of their gender identity or sexual orientation;
  • Using offensive terms related to gender identity or sexual orientation;
  • Unwanted vulgar or offensive jokes about sex or sexual acts;
  • Sending unwanted e-mails, messages or private messages containing sexual content;
  • Unwanted discussion of a person’s personal relationships and/or sex life or asking questions about them;
  • Unwanted touching of the body, clothing, face or hair, including hugging, pinching, caressing, massaging and kissing;
  • Requests of sexual content “in exchange for services” that affect your employment status and/or offer you job benefits;
  • Making sexual gestures, staring;
  • Blocking someone’s movement (e.g, blocking the door);
  • Displaying, sending or sharing vulgar images or pornography.

“Sexual harassment can be expressed in verbal, non-verbal and physical forms. Sexual harassment is a combination of different types of behavior and there is no full list of them, because it is simply impossible. In each specific case, the context should be taken into account, and it should be decided whether a behavior or a set of behaviors is considered sexual harassment or not,” says Keti Bakhtadze, a lawyer of Women’s Initiatives Support Group (WISG).

In order for an act to be considered sexual harassment, it is important what the person it is addressed to thinks; At this point, it doesn’t matter how harmless, normal, non-sexual, or desirable the harasser thinks it is (for example, if they think you like it or don’t have a problem with it), it’s still harassment if you don’t want it or find it offensive.

An action like this would be considered harassment even if at that moment you did not immediately say “no”, “stop” or something else that would make it clear that you are uncomfortable with what they are saying/doing. For example, you might go along with someone about a joke that was inappropriate or unwanted, or you might not say no to a hug because it was thoughtless or rushed at the time, or because you’re afraid you’ll get a very bad reaction if you say no. If the person harassing you is your boss or someone with more power than you, you may fear that saying no will negatively affect your position at work.

“No one is obliged to directly confront the abuser at the moment of sexual harassment”, – Keti Bakhtadze.

► All of the above are normal reactions to harassment, and they do not make it any less serious or insignificant, nor are you responsible.

What Are My Rights?

According to the Labor Code of Georgia, sexual harassment is unwanted sexual behavior towards a person , which aims and/or causes harm to their dignity and creates an intimidating, hostile, humiliating, degrading or insulting environment for them.

► Sexual behavior means saying sexual phrases to a person, addressing them with phrases of that kind, showing genitals, and any other non-verbal physical behavior of a sexual nature.

You also have the right to:

  • Work in a safe and non-discriminatory environment –  The employer is required by law to provide you with a safe environment that is not hostile or discriminatory against you on any grounds, whether it is your age, gender, sexual orientation, skin color, nationality, disability or others.
  • To familiarize you with the internal policy of your company/organization in relation to discrimination/harassment – before signing a contract, the employer is obliged to familiarize you with the provisions of the Georgian legislation on the principle of equality and its protection measures, as well as to take measures to ensure the protection of the principle of equal treatment at the workplace, including the provisions prohibiting discrimination to reflect the labor in the bylaws, collective agreements and other documents and ensure their implementation.

In the 2020 “Practical Manual on Sexual Harassment” by the Public Defender of Georgia, we can read: “The separate internal prevention document focused on sexual harassment ensures a strict and unacceptable position on the part of the private/public institution against sexual harassment and sends a signal to both the alleged victim that they will be protected and also the likely harasser, that their unwanted sexual behavior will not be tolerated and will not go unpunished. Thus, declaring issues related to sexual harassment will help to take this phenomenon seriously in a private/public institution and to think about acceptable and unacceptable sexual content behavior“.

  • Speak up against sexual harassment— whether it’s you or someone else. You can talk about harassment or discrimination at work with anyone you want, including with colleagues or employer. You also have the right to tell your employer that you believe a company policy or practice encourages or does not prevent harassment, or that a manager is engaging in harassment or discrimination.

► Article 12 of the Law on the Elimination of All Forms of Discrimination protects you from having your employer fire you or punish you in some other way (for example, reduce your salary, demote you, change your schedule, and so on) because you report or talk about sexual harassment. In such a case, you can apply to the public defender.

  • Report harassment to human resources (HR) or your boss — Report the incident to HR, your boss, or someone else in a senior position at your company. We recommend that you report the incident in writing (for example, by email) and make a copy of the letter that you may need later.
  • Publicly protest sexual harassment or other types of discrimination or violence –  you have the right to discuss this topic with employees, to speak publicly or to protest at rallies.
  • To take your complaint seriously and investigate —  Your employer is obliged to take your complaint of sexual harassment seriously and report it to the labor inspectorate or take appropriate measures to prevent it. Otherwise, they may face legal responsibilities.
  • Ask your employer what will happen and who will hear about it if you file a complaint, or look for relevant paragraphs in the regulations — you may want your complaint to be confidential or anonymous. “The mentioned depends on the regulations and the policy document against sexual harassment in force in the institution. Some consider the possibility of reporting anonymously, some do not,” says Keti Bakhtadze.

► Be aware that investigations often include questioning the perpetrator of the harassment as well as the complainant and other employees who may be potential witnesses.

  • Complain about sexual harassment to the labor inspectorate, the public defender or the court — you also have the right to tell your employer that you intend to file a complaint in court and that they cannot punish you in any way for doing so.

“A legal dispute is possible only within 1 year after the incident, although the circumstances must be taken into account here. Often, when harassment is systemic, the most severe incident may have occurred a year ago, but it continues in some form. In such a case, it is necessary to assess all the circumstances and decide whether the appeal period has passed or not” — says Keti Bakhtadze.

  • Participate in an investigation, cooperate with the appropriate authorities, and testify as a witness — Your employer has no right to prevent you from providing evidence, testifying in court hearings, or cooperating with government agencies investigating sexual harassment or discrimination at work. Even if the investigation does not find a violation, it is your right to participate in it, for which the employer cannot punish you.
  • Do nothing —  it’s up to you whether you want to complain or talk publicly about what happened. This decision is your right, not an obligation or responsibility.

Gaps in the Law and Practice in Georgia

Keti Bakhtadze also talked to Aprili Media about the shortcomings of the law and practice regarding sexual harassment in Georgia. She says that, according to the current Labor Code, harassment at the workplace (including sexual harassment) is a form of discrimination, in particular, unwanted behavior towards a person due to any of the signs provided for in the first paragraph of this article, which aims or causes harm to their dignity and is intimidating, hostile to them, to create a humiliating, degrading or insulting environment (paragraph 5 of article 4). In accordance with article 40 of the Istanbul Convention, parties shall take all necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, which is intended or results in violation of human dignity, in particular intimidating, hostile, humiliating, by creating an offensive or aggressive environment, be subject to criminal or other legal sanctions.

“This minor difference in the legal record leaves many victims without protection in reality, because the Georgian legislation requires that along with the act, sexual harassment must also be expressed in the result, that is, there must be circumstances that create intimidating, hostile, humiliating, etc. environment. The proposed definition of the Istanbul Convention does not recognize the need to identify said outcome. In addition, the main problem is the referral of victims. Sexual harassment is a form of gender-based violence and has many stigmas associated with it, as a result of which women who are victims of sexual harassment in most cases hold back from using protection mechanisms. Prolonging of the court dispute, which lasts for several years, is also a problem,” says Keti Bakhtadze.

In terms of regulating sexual harassment, the business sector is problematic, in which sexual harassment mechanisms are introduced very slowly. According to Keti Bakhtadze, there is no business incentive mechanism, and as a result, it depends only on the good will and social responsibility of the employers, whether they will introduce these mechanisms or not. This greatly hinders the practical application of the law in everyday life and prevents all victims, not only women, but LGBTQI people in its use.

What Can I Do?

If you or someone you know is being sexually harassed, there are several things you can do:

► Remember that it’s perfectly normal to feel scared or nervous about reporting or trying to stop sexual harassment in other ways. Do what you think is right, but take care of your safety as much as possible and do not put yourself in danger. Below are some examples of what you can think of doing.

  • If you feel comfortable enough, ask the person doing the harassing to stop — you can do it verbally (for example, in person or by talking on the phone) or in writing (for example, by email, private message, etc.). If you do this in writing, keep copies as you may need them as evidence in the future. If you do this verbally, it may be best to ask a trusted colleague to attend your conversation to witness it. If you do not feel comfortable enough to speak directly or write to the harasser, it is important to keep a detailed record of your interactions and experiences.
  • Review your company’s internal policies, regulations, and grievance process — many organizations have regulations that outline what protects you in this situation and who you can turn to within the organization. Look for sections on harassment and discrimination. This section often describes how and to whom you can report an incident. If the organization does not have such documents or you did not receive them when you started working, ask your HR or supervisor to share with you the organization’s policy on harassment and discrimination.

► The employer is obliged to reflect the provisions prohibiting sexual harassment in the regulations and ensure their implementation.

  • Write everything down:
  • Write down what happened when the harassment took place in as much detail as possible, including: date, time, place, exactly what was said or done, who said or did it, what was your reaction, and who were the people who witnessed it. If something like this happens again, write it down moment by moment while you remember everything clearly.
  • Keep a record of any conversations or meetings you have about sexual harassment, including with HR, your supervisor, or the person who harassed you. Record the date, time, place and names of those present. If you feel comfortable enough to do so, ask the witnesses to write down what they saw or heard.
  • Keep all your notes in a safe place outside of the office, such as at home or in a journal, cell phone, personal email, and so on.

► Keep in mind that these notes may be read by others later in the investigation, so it is important to be as objective as possible and describe the facts.

  • Save all emails, messages, private messages or letters about the harassment or between you and the harasser.
  • Keep copies of your statements or complaints about sexual harassment sent to your company’s administration and their responses.
  • Keep copies of all other documents and any responses related to harassment.
  • If you think that the employer punished you for talking about this topic, write down everything in detail: what happened, when, where and in whose presence.
  • Report harassment to the HR or your supervisor — We understand that it’s not always possible to feel comfortable after discussing sexual harassment with HR or your supervisor. But we recommend that you first report the incident to someone in a position of authority at work, as it is difficult for your employer to do anything to prevent such behavior if they are not aware of it.
  • We recommend that you report harassment in writing and keep copies, but if you decide to do so verbally (for example, in person or online), we recommend that you note the details of the conversation and email it later. Email your supervisor (or whoever you spoke to) about what happened during the conversation so they can confirm it in writing. For example, you can write something like:
  • “Dear [name of supervisor or manager], I am writing to confirm that today, [date], we spoke and discussed the fact that I am being sexually harassed by [name of employee]. As I said, the harassment involved [list of acts/facts], and happened [this many times]/happened [during this and that period]. As you told me, [description of employer’s response]. Thank you for taking the time to talk to me about this. Sincerely, [your name]”
  • You can report harassment at work anonymously —  If you feel uncomfortable or threatened about reporting harassment, and if the organization’s regulations allow it, you can report the incident anonymously to HR or a manager. But keep in mind that in this case it is important to describe in detail when, where and who did what (or what you know about it), otherwise your employer will not be able to investigate the case and solve the problem.
  • Talk to your lawyer — Talk to your personal attorney to find out exactly what you can do in this situation.

► If you do not have a personal lawyer and want to get legal advice, you can contact women’s and human rights organizations that can provide you with legal assistance. For example:

Sapari, which has a team of gender-sensitive lawyers with many years of experience. The organization offers free legal assistance to women victims of violence throughout the country. To get free consultations and legal assistance, you can contact the organization at the following numbers: 599 407 603; 0322 307 603; Kvemo Kartli: 599 141 936; Imereti: 598 611 107; Kakheti: 568 618 741; Samtskhe-Javakheti: 599 899 105.

Women’s Initiatives Support Group (WISG), which focuses on the empowerment of lesbian, bisexual women and transgender people. WISG lawyers provide legal advice and follow-up services in criminal, civil and administrative law cases. This includes telephone, online or in-person consultation, legal services and representation in state agencies or courts. You can contact the organization by phone (595 190 303) or by e-mail, which is [email protected]

Partnership for Human Rights (PHR), whose mission is to support various social groups, including children, persons with disabilities, the elderly and others. You can contact the organization through the contact form, by phone (032 2 33 13 56) or by e-mail, [email protected]

Young Lawyers Association of Georgia (GYLA), which stands on the principles of protection of human dignity, rights and freedoms and whose goal is to raise legal awareness in the society and establish the rule of law. To get legal advice, you can contact the organization through the contact form, by phone (032 2 99 50 76) or by e-mail at [email protected]

  • You can approach the public defender, the labor inspectorate or the court – if in case of harassment you approach the relevant body with a statement or complaint to protect yourself from discrimination or cooperate with it, the employer has no right to terminate your employment contract or start negative treatment or influence on you in any way. “The Public Defender examines the application and makes a decision within 6 months; Labor inspection within 2 months, although they can continue for another month. Consideration of the case in court may drag on for years. “Unfortunately, the deadlines set by the law are not respected at all,” says Keti Bakhtadze.

► In addition, it should be noted that assigning responsibility to the person who committed the harassment does not release the employer from the corresponding responsibility. They may be held liable if they became aware of the fact of harassment and did not report it to the labor inspectorate or did not take appropriate measures to prevent the said action.

► Keep in mind that during the investigation, both the harasser and you will have to testify. They may also interview your employer, HR and employees who witnessed the incident.

What Can Happen?

If you decide to litigate the incident, several things can happen as a result, whether it is a fine, financial compensation, a request to stop or eliminate the harassment, and more:

  • If you approach the labor inspection service, it has the right to warn or fine the violator, and in case of repetition of the violation, to charge a fine in double amount.
  • If you approach the court, you can request the cessation of sexual harassment and/or elimination of its consequences, as well as compensation for moral and/or material damages.
  • As for the public defender, they can issue a recommendation and, unlike the court, they do not have the authority to impose material or moral damages on the harasser.

Each case is different, but below are some examples of what you can ask for if your application/complaint/lawsuit is upheld:

  • Penalty due to committed crime“The Labor Code provides a mechanism for calculating the appropriate penalty for each violation. The penalty is calculated according to the income of the employer in the previous calendar year or, in the case of an employer registered as a VAT payer, the total amount of VAT-taxable transactions carried out during the previous 12 calendar months. The minimum amount of the fine stipulated by the Labor Code is 200 GEL, and the maximum allowed amount is 1000 GEL. In certain cases, a double or triple fine may be applied. The Labor Inspection Service has the discretionary authority to determine when and which administrative fine should be applied, and in case of imposing a fine, what amount of fine should be imposed. The administrative fine should be commensurate with the violation,”  says Keti Bakhtadze.
  • Compensation for lost wages if you lose your job as a result of sexual harassment — You may also be able to seek compensation for medical expenses you may incur in the future as a result of sexual harassment. According to Keti Bakhtadze, the victim of discrimination can also claim damages. This applies to both pecuniary damage (calculated on a case-by-case basis) and non-pecuniary damage.
  • Compensation for moral damages — this includes stress, anxiety, pain, sleeplessness or reputational damage caused by harassment.

“Moral damage refers to physical and moral-psychological suffering, which a person suffers from the violation of this or that good, mostly immaterial values. The compensation has three functions: to satisfy the victim, to influence the person who caused the damage, and to prevent infringement of the personal right by other persons. When assessing moral damage, the court must take into account the subjective attitude of the victims towards the severity of such damage, as well as objective circumstances, which make it possible to evaluate it from this point of view. Only in this case, the existence of moral damage and the criteria for its reasonable and fair compensation can be established. Determination of the amount of non-material damages is carried out in each case individually, taking into account the factual circumstances of the case. The main goal of compensation for moral damages is not the complete restitution of rights, because the damage caused does not have a financial equivalent and it is impossible to fully compensate it. Very often, the correction of the resulting consequences is an irreversible event, and no matter how great the compensation is, it still cannot restore the mental state of the victim before the violation, which is why the amount of compensation should not be infinitely increased and inconsistent with reality. It should be determined reasonably and fairly. To date, there is no specific test for determining the amount of damages. The plaintiff determines the amount of compensation themselves, and the court can reduce this amount at its own discretion,” says Keti Bakhtadze.

  • Reinstatement — If you’ve been fired because of sexual harassment or as punishment for reporting it, you can potentially seek reinstatement and get your position back.
  • Order the employer to change company policies or practices — The court may order the employer (or agree with the employer) to change the company’s policies and practices regarding sexual harassment in the future so that the workplace is safe and equal for everyone so that no one else has to go through the same thing.

Sources: Equal Rights, Labor Code of Georgia, Georgian Bar Association