Sexual and sexist harassment at work

Sexual harassment at work is primarily a women's issue. Working women often face sexist harassment rooted in the false belief that females are inferior. Such sex-based harassments arise from gender inequality in society and is further exacerbated by the hierarchical order of employment relationships. In the United States, the issue is regarded as a form of discrimination, whereas in Europe it is traditionally viewed as an attack on dignity. If sexual harassment is not addressed within the context of discrimination, its close links to societal gender inequality becomes invisible. The European Union has gradually accepted the discrimination perspective in tackling sexual harassment, due in part to the influence of US law. This shift has indirectly impacted Turkish legislation, which now includes a legal basis for defining sexual and sexist harassment as discrimination. However, there have been no corresponding developments in jurisprudence thus far. Combatting sexual and sexist harassment at work is an essential part of the state's duty to ensure gender equality. To this end, the state must first legislate definitions of sex-based harassment from a discrimination perspective and integrate them into occupational health and safety law as psychosocial risks. Policies and mechanisms must also be developed to tackle the problem of harassment, considering the vulnerabilities that stem from employees' identities or working conditions. Obstacles that impede employees' access to justice must be removed, including mandatory mediation in labour disputes and the facilitation of legal aid. Employers have a duty to prevent and end sexual and sexist harassment, based on their duty of care, occupational health and safety legislation, and the prohibition of discrimination. Employees' right to privacy sets the limits of the employer's duty to take measures against harassment. Employers must establish a work organization that ensure gender equality and set up policies and mechanisms to combat sex-based harassments. Measures taken after harassment has occurred must not impose any burden on the victim, and employers may impose disciplinary sanctions on the harassers or terminate their contracts. Victims of harassment have the right to remove themselves from dangerous working conditions and to receive pecuniary and non-pecuniary damages and discrimination indemnity. The provisions on discrimination indemnity must be reformed to provide equal protection to all employees, better compensation for victims, and to ensure greater deterrence for employers. The employee who is the victim of harassment may immediately terminate the employment contract. However, the legislation sets forth that the right to immediate termination can only be used within 6 working days of the incident, which is incompatible with social reality. Victims must be able to terminate the contract if they have to face the harasser, as the effects of harassment are ongoing. The termination of the victim's contract in relation to the harassment is illegal, and the sanction of such termination should be an absolute nullity, de lege feranda. The employer's civil liability against the victim may arise from their own fault or from vicarious liability. While the case law on sexual harassment facilitates proof by relying on the presumption of facts, both sexual and sexist harassments constitute discrimination, and therefore the proof of these acts must be subject to the rules of proof of discrimination. An explicit provision to this effect could be effective. The rules against illegal evidence must be applied flexibly regarding proof of harassment, especially when the burden of proof lies on the victim.