Sexuelle Belästigung am Arbeitsplatz – Mythen versus österreichische Rechtsprechung

In dieser Folge unseres Arbeitsrechts-Podcasts sprechen Magdalena Ziembicka und Matthias Unterrieder über das Thema sexuelle Belästigung am Arbeitsplatz, ausgelöst durch die zunehmende öffentliche Aufmerksamkeit für dieses Thema und weit verbreitete Fehlvorstellungen in der Öffentlichkeit.

Anhand konkreter Gerichtsentscheidungen wird erörtert, unter welchen Voraussetzungen eine sexuelle Belästigung nach dem Gleichbehandlungsgesetz vorliegt, wann eine Zurechnung an den Arbeitgeber erfolgt und welche Konsequenzen – insbesondere die Entlassung – dem Belästiger drohen. Die Folge macht deutlich, dasssexuelle Belästigung am Arbeitsplatz sehr verschiedene Formen annehmen kann und negative Konsequenzen für das Arbeitsverhältnis nichtzwingend eintreten müssen. Abschließend werden Best-Practice-Empfehlungen für Arbeitgeber bei Verdachtsfällen besprochen.

Sexual harassment at the workplace – myths versus Austrian case law

In this episode of our Arbeitsrecht podcast, Magdalena Ziembicka and Matthias Unterrieder talk about the topic of sexual harassment in the workplace, prompted by increased public attention to the topic and widespread misconceptions circulating in the public domain.

The episode highlights that sexual harassment in the workplace can take many different forms and that negative impact on the employment relationship is not a requisite. Finally, the speakers discuss best-practices for employers in sexual harassment claims at the workplace.

Legal definition and requirements

Sexual harassment under the Austrian Equal Treatment Act refers to unwanted sexual conduct that violates a person’s dignity, is inappropriate, or offensive. This includes behavior ranging from suggestive remarks to unwanted physical contact. To qualify as harassment, the conduct must either create an intimidating, hostile, or humiliating work environment or affect the employment relationship, for example through promises or threats linked to sexual compliance. Importantly, a hostile environment alone is sufficient, even without concrete professional disadvantages.

Consent and power imbalances

Consensual relationships between colleagues are not considered harassment if they are genuinely mutual. However, determining consent can be difficult where power imbalances exist, particularly in hierarchical relationships. Austrian case law makes clear that victims do not need to explicitly reject the behavior. Silence, avoidance, or inaction does not imply consent, as these reactions may be driven by fear or uncertainty.

Case law examples

Court decisions illustrate how these principles are applied in practice. In clear cases, such as repeated sexual advances by a managing director who ignored refusals and contributed to an employee’s dismissal after rejection, the courts found both a humiliating environment and employment-related consequences. In another case, the sending of a pornographic video and sexual remarks constituted harassment even though the victim did not object.

By contrast, in a borderline case involving ambiguous remarks and minor physical proximity, most conduct was not considered harassment because it lacked clear sexual meaning or did not create a hostile environment. These examples show that context, tone and the overall situation are decisive.

Employer liability

Employers may be liable if harassment is committed directly by them or their representatives (board members or managing directors, but also individuals who may exercise authority over the victim in a professional capacity), whose actions are attributed to the employer. They may also be liable if they fail to address harassment by employees or third parties despite being aware of it. In such cases, they must take effective measures to prevent further misconduct, such as warnings, transfers, dismissal, or ending business relationships.

Legal consequences

Victims can claim compensation, including damages for emotional harm. For perpetrators, the most serious consequence is summary dismissal. Although not explicitly listed in law, sexual harassment is treated by courts as a serious violation of personal dignity. Repeated misconduct clearly justifies dismissal, but even a single serious incident may suffice. Workplace culture or informal behavior does not excuse such conduct.

Off-duty conduct

Harassment can also occur outside working hours and still have legal consequences. Conduct at company events or in private communication may justify dismissal if it affects the employment relationship, for example by damaging trust or workplace culture.

Late reporting and limitation periods

Delayed reporting is common and recognised by courts due to the emotional impact on victims. Claims for damages must generally be brought within three years from when the victim becomes aware of the incident and the perpetrator. For dismissal, however, the relevant moment is when the employer becomes aware of the facts, meaning action can still be taken long after the incident if knowledge was only recently obtained by the employer.

Employer best practices

Employers should respond immediately to allegations by suspending the accused and gathering information from the affected person and witnesses. A structured and confidential internal investigation is essential, ensuring fairness to all parties. After assessing the facts, the employer must decide on appropriate measures, which may range from warnings to dismissal. Proper documentation is crucial throughout the process.