Reframing Harassment as Occupational Safety and Health Issue

In 2019, the International Labor Organization (ILO) adopted the Convention No. 190 on Violence and Harassment at Work (alongside the accompanying Recommendation Nr. 206). The convention has been dubbed a milestone, since it not only contains the first international definition of violence and harassment, but also implements a duty of each member state to address this topic through “an inclusive, integrated and gender-responsive approach”. This duty will apply to Germany from the 14th of June, when the convention enters into force. At the event of ratification, the German government expressed its opinion that “in order to meet the requirements of the Convention, no additions to national legislation are necessary.” We will demonstrate that this does not hold true.

Regulating harassment, yet again

The need for legal regulation against violence and harassment in the workplace has been most prominently raised to German public consciousness in the 1980s. But, for example, an article from 1896 already highlighted the necessity to protect “women workers against immoral dangers at the workplace”. Still, it took nearly a hundred more years for the first law against sexual harassment in the workplace – the Beschäftigtenschutzgesetz (BSchG) of 1994 – to be (finally) implemented. While the government praised the BSchG for being the first of its kind, the opposition was already critical of the law’s effectiveness. It was – to some – thus not very surprising when a study conducted in 2002 found that the BSchG did not keep its promise on preventing sexualized harassment.

The BSchG focused on the dignity and personality rights of the harassed. This was instrumental in framing sexual harassment as a (misinterpreted) expression of sexuality. Until now, the legal understanding of sexual harassment oscillated between consensual acts on the one hand and egregious, scandalous acts of a single perpetrator deviating from the norm on the other hand. Such an individual framing of sexual harassment conceals the systemic and social dimensions of sexualized harassment.

When Germany implemented EU-Directives against discrimination in 2006, some of the BSchG’s main ideas were integrated into the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG). The conceptual approach chosen in the AGG most notably kept the reference towards “dignity”, but reframed the topic of sexual harassment on a crucial note: The AGG acknowledged the discriminatory dimension of (sexual) harassment. This highlighted that sexualized harassment is not an individual problem, but a societal one. This framing underscored the social causes and contexts and brought the structural dimension to the fore, as a countermovement to the earlier trivialization. It took another 11 years for the Federal German Labor Court to hold that sexual harassment is not an expression of “sexually determined lust”, but instead “of hierarchies and the exercise of power”. This decision finally acknowledged the new conceptual approach of the AGG.

However, the approach implemented in the AGG also came with some limitations. Mainly, it attends to the individual harassed person’s situation after a harassment has occurred. It grants the individual multiple rights, most notably the right to complain (Sec. 13 AGG). However, not all workers have the legal consciousness or the financial safety net to come forward with a complaint. When they do, they are oftentimes not believed, a phenomenon aptly coined in the belittling colloquial phrasing of the “he said, she said”-dilemma. Workers are thus not only silencing themselves, but – when speaking up – not being listened to. In 2021, a study showed that only half of the companies have implemented an internal complaint mechanism while every fifth worker experiences psychological violence and harassment. In total, the second law against sexual harassment in the workplace has been effective in raising problem awareness, but not so much in solving the problem.

Making it preventable

The ILO saw the need for further regulation. The new convention obliges each member state to “respect, promote and realize the right of everyone to a world of work free from violence and harassment” (Art. 4(2)) and to “adopt, in accordance with national law and circumstances and in consultation with representative employers’ and workers’ organizations, an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work” (Art. 4(2)). To do so, the convention builds on existing framework in equality and non-discrimination law, but adds a labor and employment layer to it. Most specifically, it builds on occupational safety and health (OSH) instruments for effective prevention. This conceptual shift will, if taken seriously, require effective company policies to prevent violence and harassment.

Firstly, the convention brings into focus certain working sectors with the highest risk. It requires identifying the “sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to violence and harassment” and effectively protecting the persons concerned (Art. 8(a-b))). In fact, there are sectors with a particularly high prevalence for violence and harassment. For example, sectors with important customer interaction, namely transportation or commerce, are high at risk. The workers in sectors such as agricultural fieldwork, janitorial work or care work are particularly vulnerable since they find themselves in isolated work environments during late night or early morning hours, and because they are often battling poverty. That is why scholars note that (post-)immigrant workers have to be considered vulnerable workers. By addressing sectoral solutions, the ILO convention puts precarious employment into focus, especially by combining this sectoral focus with vulnerability as addressed in Art. 6.

Secondly, the convention states that violence and harassment shall be taken into account in the management of occupational safety and health (Art. 9(1)(b)). The approach as such should be well known to the European labor lawyer, considering that the OSH Directive (and, in Germany, the OSH Act, Arbeitsschutzgesetz, ArbSchG) already considers all kinds of health risks and hazards, including mental hazards (Sec. 5(3) no. 6 ArbSchG mentions this explicitly since 2013). However, there are shortcomings in the implementation thereof. Although employers are already (theoretically) required to actively prevent violence and harassment with OSH tools, these risks oftentimes fall through the cracks. If implemented, however, such an OSH approach could empower workers since they have the right to assist in the prevention of violence and harassment in the world of work. This participatory design would allow for workers to bring in their experiences.

These two requirements of the convention are indicative of a subtle, but decisive shift in the conceptualization of violence and (sexualized) harassment. The channeling of violence and (sexualized) harassment into the specific institutional form of an OSH approach makes it possible to think of the topic as something preventable. Instead of relying on vulnerable workers to proactively make a complaint, this OSH approach makes clear that instead, employers have a proactive duty to prevent violence and harassment in the first place. This reframing brings further OSH actors to the stage, such as safety and medical experts as well as Works Councils and other worker representatives, and lastly, state supervisory authorities.

Getting there

In order for this promising approach to be implemented, the ratification act by the German government could have been more concrete. We politely disagree with the German government’s assessment that no further implementation is necessary. Instead, we argue that the ILO Convention requires additional legislative measures. If one were to take the “inclusive, integrated and gender-responsive” approach required by the convention seriously, both the AGG and the ArbSchG would need an adaptation.

First, this concerns definitions. In German law, violence and harassment are addressed in two different acts, the AGG and the ArbSchG, while only the AGG contains a definition. When comparing it to the definition of violence and harassment set forth in Art. 2 of ILO convention No. 190, differences emerge. The convention requires the violent and/or harassing behavior to be unacceptable without the need to prove it was unwanted, and therefore does not assume a subjective element on the part of the perpetrator. This moves the concept further towards objective criteria, thus lowering the threshold for the claimant worker. The risk-focused approach also includes threats of violent and/or harassing behavior to suffice, allowing workers to come forward before having been subjected to violence or harassment, again lowering the threshold. As for the severity of the behavior, the definition in the convention clearly states that a single occurrence of harassment is enough. Lastly, the harms mentioned in the convention’s definition focus on the actual and potential harms suffered by harassed workers, namely physical, psychological, sexual and economic. The definitions proposed in Sec. 3(3), (4) AGG do not align with the standards set forth in this definition.

Secondly, as for ArbSchG, a clarification in relation to violence and harassment would be useful. While it holds true that does the ratification act formally complies with the standards set forth in the Convention, an effective implementation would give a clearer nudge in this direction. An analysis from 2023 showed that in the past OSH has hardly been used as an instrument against violence and harassment at work, although it was well possible. Scholars have repeatedly noted that OSH actors have overlooked or underrated gender issues (see here, here and here), which highlights the need for gender-sensitive approaches. While there are some promising responses from the relevant actors in this field (most notable from the Employer’s Liability Insurance Association for Health Service and Welfare Care (Berufsgenossenschaft für Gesundheitsdienst und Wohlfahrtspflege) for health workers and the German Social Accident Insurance (Deutsche Gesetzliche Unfallversicherung) for emergency personnel, to name a few), the inclusion of most notably gender-based violence and harassment into OSH policies will not occur over night. Since no sector can claim to be free from violence and harassment, it will take many actors to get active. In order for effective prevention to occur through OSH tools, the responsible actors, in particular companies, would have profited from specific indications on how to comply.

While Art. 2 of the complementing recommendation allows the member states to address violence and harassment in the world of work in the following domains of “labour and employment, occupational safety and health, equality and non-discrimination law, and in criminal law, where appropriate”, it requires an “inclusive, integrated and gender-responsive approach”. The German government did not fulfill the criteria of this approach by merely pointing towards existing legal frameworks. We strongly urge to tackle these issues on a legislative basis. Now would be the ideal moment to do so. Implementing the convention’s approach explicitly into German law would shift the focus away from vulnerable individuals towards the duty of the employer to prevent violence and harassment. It would also grant agency to the workers to transform their working conditions. In bringing unsafe working conditions to the fore, the OSH could be deemed the best approach yet, in regulating harassment at work.