- 12 Jan 2009
The employer was responsible when a woman was doubly sexually harassed by her daily manager and a colleague. This triggered a compensation of DKK 10 000 in the Danish Gender Equality Board.
A sales consultant was receiving text messages from her daily manager and later on also from a colleague. The messages had sexual undertones and constituted sexual harassment under the Danish Act on Equal Treatment of Men and Women, the Board said. The employer was also responsible for the colleague’s sexual harassment.
It was only shortly after being employed with a large company that the sales consultant started receiving text messages from her daily manager which she thought were offensive. For instance, once when she texted a friend of hers about a French delivery and accidentally sent the message to her manager by mistake, he answered back: ‘sounds exciting that French delivery if it’s what I think it is ...’.
Soon after that text message, a supervisor was employed and he also became interested in the sales consultant. His constant overtures culminated one night in numerous text messages of a clearly sexual nature, including about the relationship between the sales consultant and her daily manager. Similar text messages were sent the same night from the supervisor to the manager.
This conduct caused the manager’s superior to call a meeting with the supervisor and the sales consultant and dismiss both of them. The woman then filed a complaint with the Board, submitting that her employer was responsible for both the daily manager’s and the supervisor’s sexual harassment. The employer did not agree that it was responsible for the supervisor's conduct and pointed out that he had been dismissed and that the daily manager’s text messages could not be considered offensive.
The Board found in favour of the sales consultant. By producing the text messages, she had created a presumption that the manager as well as the supervisor had acted contrary to the prohibition of sexual harassment. The employer, on its part, was unable to discharge the burden of proving that there was no sexual harassment. As far as the daily manager was concerned, his text messages in themselves constituted a violation of the prohibition and his suggestion that the messages had only been 'a bit of fun' was not accepted by the Board. The sales consultant was therefore awarded DKK 10 000 in compensation under the Danish Act on Equal Treatment of Men and Women.
Norrbom Vinding notes
that the decision is a good example that text messages may assist employees in proving sexual harassment under the Danish Act on Equal Treatment of Men and Women and that it will then be for the employer to prove that there was no sexual harassment.