Burden of proof in a case concerning violation of the principle of equal treatment by sexual harassment of an employee

In art. 18.3a § 6 of the Labor Code, the legislator included a legal definition of sexual harassment, which constitutes discrimination on the grounds of sex. According to this provision, sexual harassment is any unwanted conduct of a sexual nature or relating to the sex of an employee with the purpose or effect of violating his or her dignity, in particular creating an intimidating, hostile, degrading, humiliating or offensive environment for him. This behavior may consist of physical, verbal or non-verbal elements.

The basic regulation on the distribution of the burden of proof in cases involving claims arising from the violation of the prohibition of discrimination is contained in Art. 18.3b § 1 of the Labor Code. In the jurisprudence of the Supreme Court on the basis of the interpretation of this provision, it is assumed that in court cases for compensation for discrimination in employment, an employee should present to the court facts from which a presumption of direct or indirect discrimination can be derived.

This means that it is up to the employee to prove the occurrence of sexual behavior and to object to such behavior. In this case, objection may consist in, for example, avoiding contact with the perpetrator or not reciprocating the perpetrator’s behavior.

Then, the burden of proof that the principle of equal treatment has not been breached, is transferred to the employer, with the exception of the possibility of justifying the sexual harassment on any objective grounds. The Supreme Court stated that Article 18.3b § 1 of the Labor Code, in the case of sexual harassment which, due to its obvious unlawfulness, cannot be justified by any objective reasons, must be supplemented by the regulation of Art. 14 sec. 3 of the Act of December 3, 2010 on the implementation of certain provisions of the European Union in the field of equal treatment, according to which, in the event of a violation of the principle of equal treatment, the entity accused of violating this principle is required to prove that it has not breached it .

KS