MADRID, 3 Nov. (EUROPA PRESS) –
The Supreme Court will review the concept of “sexual harassment” included in the Effective Equality Law to specify “if a request for a sexual favor has to be submitted” or if “ambiguous attitudes” are enough for it to be considered a “very serious fault” in the case of public employees.
Specifically, the magistrates have considered it “interesting” to clarify what are the requirements that make up the concept of sexual harassment with respect to harassment based on sex in article 7 of Organic Law 3/2007 on Effective Equality of Women and Men .
In this way, the High Court intends to determine how both types of harassment differ in cases in which public employees are sanctioned with a “very serious fault”, as established in article 95.2b) of the Basic Statute Law of the Public Employee.
In a car, to which Europa Press has had access, the First Section of the Contentious-Administrative Chamber has explained that it will interpret the aforementioned articles of the Law of Effective Equality and the Law of the Basic Statute of Public Employees. “All this, without prejudice to the fact that the sentence has to be extended to other legal norms or questions, if the debate finally demands it,” the court said.
Although the Basic Statute of Public Employees includes both behaviors – harassment based on sex and sexual harassment – as “very serious offenses”, the High Court will now study the requirements for each case.
The Supreme will address the issue following the appeal of a worker from the Rey Juan Carlos University. The man challenged before a contentious court in Madrid the resolution of October 2019 by which he was imposed a “sanction of suspension of functions” for six months for the commission of a “very serious infraction of continuous sexual harassment” .
Although the court agreed with the worker, later the Superior Court of Justice (TSJ) of Madrid revoked the resolution at the request of the university. That is why man has now gone to the Supreme.
On that occasion, the Madrid Supreme Court recalled that the Effective Equality Law sets three requirements to classify conduct as sexual harassment: “(1) verbal or physical harassment behavior, (2) of a sexual nature, and (3) that it be offensive, that is, we are dealing with unlawful behaviour”. And it concluded that –before such a definition– the elements of harassment based on sex were “similar” to those of sexual harassment, except in the “sexual nature” that said sexual harassment entails.
The Madrid judges understood that the definition of article 7 of the Effective Equality Law considered that “all offensive behaviors related to the sex of the victim, even if they are not of a sexual nature, continue to be harassment” for reasons of sex. They also insisted that both types of harassment have “identical legal protection.”
In the particular case of the Rey Juan Carlos worker, the TSJ stressed that “excessive confidence” was observed, as well as “attempts to formalize or achieve a physical approach” and reproaches for “not saying goodbye in his messages.” In his opinion, these actions “are shown as apparently ambiguous behaviors of sexual approach” because “precisely” said ambiguity “is used to argue the absence of libidinity, when it is an indication of the contrary.”
The university worker has brought the case before the Supreme Court, considering that there are rulings from the Superior Courts of Catalonia and Castilla-La Mancha in which the concept of sexual harassment included in the Law of Effective Equality includes the “need for the character libidinous behavior”.
Thus, the Supreme Court has agreed to clarify the matter and rule on whether in the concept of sexual harassment “a request for a sexual favor has to be present” or if “ambiguous attitudes” are enough for it to be considered a “very serious fault”.
