Is Bottom Pinching Sexual Harassment?
A discussion of the judgment of the Dutch Supreme Court of
10 June 2009, JAR 2009/202
Sexual Harassment
The law stipulates that sexual harassment means: any form of oral,
non-oral or physical conduct with a sexual connotation which has as
its objective or consequence that the dignity of a person is
impugned, in particular when a threatening, hostile, insulting,
humiliating or offensive situation is created. The judgment of the
Dutch Supreme Court of 10 June 2009 concerned the question of
whether it is decisive how the employee experiences the behavior or
whether the circumstances of the case may also be relevant,
including the fact that the behavior was meant to be a joke.
The Facts in the Judgment
On 19 December 2002 the annual Christmas reception of the Lepra
Stichting took place. The Christmas reception was held in a
recreation room that was lit by candlelight only. When he entered
this room, the director pinched an employee's buttocks and said
something like "it looks just like a darkroom". The
relationship between the employee and the director was never
restored, and the employment agreement was subsequently rescinded
with compensation for the employee in the gross amount of € 68,500.
In separate proceedings, the employee claimed compensation in the
amount of € 266,730 for material damage and € 5,000 for emotional
damage. The Subdistrict Court and the Court of Appeal rejected the
claim of the employee.
The Supreme Court
The Supreme Court ruled that it is an incorrect assumption that
there was sexual harassment if the person against whom the behavior
was directed feels that he was being sexually harassed. It appears
from legislative history that "the inner perception of the
parties involved should not be challenged before a court". It
is therefore also important to look at the circumstances under
which the employee was pinched in the buttocks. The fact that the
behavior the director was blamed for had no sexual connotation but
was only a joke is an important circumstance. In addition thereto,
the employee had not been able to make it plausible on the basis of
the facts and circumstances that his dignity was impugned to such
an extent that it constituted sexual harassment. Under these
circumstances there was no question of sexual harassment and the
claim of the employee should be rejected.
Tips:
- For the question whether there is sexual harassment, all
circumstances of the case are relevant, therefore also the
circumstances under which the behavior took place. The question
is not only how the employee experienced the behavior.
- If an employee claims damages because of sexual harassment,
the employee has to make facts and circumstances plausible that
prove that his dignity was impugned and that there was sexual
harassment.