The Judgment
a worker, after finishing his work shift, went to the changing room to change his work clothes; after changing, he went out of the changing room and while passing through the anteroom, after having contracted a colleague whom he already knew, he pulled down the zip of his trousers and extracted his penis, and, showing it to his colleague exclaimed ‘here it is’.
When do words of a sexual nature become harassment?
Harassment is also considered as disturbance of physical well-being or spiritual tranquillity caused by persons or things. Therefore, to understand the meaning of the term harassment, it is essential to focus on what are the rights violated through it, i.e. the fundamental rights, such as the right to freedom, equality and dignity that every human being is entitled to without any discrimination related to sex, gender, but not only, sexual orientation, age, disability, i.e. an individual’s physical condition, membership of a religious belief or ethnic group, rights that are set out in the 1948 Universal Declaration of Human Rights, which I suggest everyone reread periodically, but which are also the values of our Constitutional Charter.
The term was first used by the feminist movement in the United States in the 1960s and was used in reference to sexual harassment in the workplace.
And the concept has evolved, even in Europe and even in Italy, precisely in this sense, because the term harassment, which, over time, has taken on a different meaning according to the environmental context and according to the socio-cultural context, in any case has come to include all those acts and behaviour, implemented in the workplace, that cause discrimination, violating the values of our Constitutional Charter, but also the provisions of the last paragraph of Art. 15 of Law No. 300/70, known as the Workers’ Statute, which deems null and void any pact or act aimed at discriminating on political, religious, racial, language or gender grounds, on grounds of disability, age or based on sexual orientation or belief.
How did the judge justify the ruling?
The judge found sexual harassment to exist, considering the absence of a physical assault to be irrelevant, as harassment occurs even if the worker utters phrases with the “effect of violating the dignity of a female or male worker and creating an intimidating, hostile, degrading, humiliating or offensive atmosphere”. Thus, for the purposes of the constitution of sexual harassment, it is irrelevant whether the worker did not intend to offend the victim of the sexual innuendo.
What our legal system provides for: Article 2087 of the Civil Code
In this regard, it is necessary to bear in mind the regulations of our legal system that protect the physical and moral integrity of the employee, since their violation gives rise to the liability of the employer.These are Articles 32 (protection of health) and 41 of the Constitution (economic activity must be carried out in safety), Article 2087 of the Civil Code (protection of working conditions) and a prolific series of special laws.
The basic rule remains Article 2087 of the Civil Code – which has been the subject of a broad and extensive interpretation in case law to protect workers. The same provides that the entrepreneur is obliged to adopt in the exercise of the enterprise the measures that, according to the particular nature of the work, experience and technique, are necessary to protect the physical integrity and moral personality of workers
The judgment under comment today gave the following reasoning:
The worker’s serious allegations could not be underestimated by the employer, on whom it is incumbent, under Article 2087 of the Civil Code, the duty to protect not only the physical integrity, but also the moral personality of its employees, so that “sexual harassment in the workplace, affecting the health and serenity (including professional) of the worker, entail the obligation to protect the employer under Article 2087 of the Civil Code” and therefore “must be considered legitimate the dismissal imposed on an employee who has sexually harassed a colleague in the workplace” (Cass. 18.09.2009 no. 20272).
In court, who has the burden of proving harassment art 2697 cc:
By virtue of the transposition of Directives no. 2000/78/EC, no. 2006/54/EC and no. 2000/43/EC, as interpreted by the CJEU, it is up to the employee to allege and prove the risk factor and the alleged less favourable treatment compared to that reserved to persons in similar conditions, while the employer must deduce and prove unequivocal circumstances, such as to exclude, by precision, seriousness and concordance of meaning, the discriminatory nature of the termination Moreover, the burden of proof on the employee may also be discharged through precise and concordant presumptions.
The environment and climate of working conditions
The Judge justified the sentence as follows:
Well, the facts as they emerged prove without doubt that the worker engaged in conduct characterised by a clear sexual content, using phrases and contents deserving of censure against his colleague.
Moreover, in the present case, it should be noted that the conduct of the male colleague was carried out in an atmosphere of goliardic behaviour often characterised by verbal and gestural allusions of a sexual nature. The goliardic atmosphere does not constitute a justification for the conduct; therefore, even unintentional or joking behaviour, even in the absence of offensive intentions, can be considered harassment capable of damaging the dignity of colleagues or female colleagues, thus constituting just cause for dismissal.
