If we look at the law in force in Estonia, we have offences against sexual self-determination in the Penal Code (Division 7 of Chapter 9 Offences against the Person of the Penal Code), which almost everyone has a common understanding of. Failure to report a rape is also an offence. Bystanders must intervene, report and obstruct. When someone seeks gratification in any way, we are not talking about harassment, but about an offence with much more serious consequences.
Sexual harassment is covered in the Penal Code under the chapter on civil rights (Division 1 of Chapter 10, Offences against Political and Civil Rights), which regulates offences against equality (§§ 151-153). Gender equality is also regulated by the Gender Equality Act (see primarily clauses 3 (1) 5) and 6), § 5, subsections 13 (1) and (2) about harassment), the Employment Contracts Act (clause 11 (1) 4), clause 6 (2) 5)) and others. Harassment is seen as an act against the victim’s will, and humiliating or threatening is always one of the characteristics of sexual harassment in addition to that. In the case of harassment, the harasser believes that the other person is significantly inferior to them precisely because they are a woman or a man. For example, they may think it’s okay to mock women and express it in a sexual manner. This is why we talk about harassment as an issue of equality – if a person considers another person to be their equal, whether that person is a man or a woman, they will not humiliate that person against their will.
In harassment, the subjective side is the determining factor – two different people may perceive the same thing differently, this experience may be influenced by power relations, context, some previous incidents, etc.
If two people at work hug each other and engage in banter, it may happen that 20 people feel good about it and they don’t see anything sexual in this. So for them, the act is not of a sexual nature, it’s not against anyone’s will, and feeling good about it indicates that it’s not degrading. The twenty-first, however, feels that the act is sexual in nature, feels objectified in the power relationship, and therefore feels humiliated, and signals that it is against their will. A person has the right to feel this way, and a person also has a perfectly respectable right to signal their reluctance to a human resources manager or colleague or whoever the designated contact in the organisation is. The other also perfectly decent and respectable 20 people may not really notice the problematic nature of the issue themselves, because for them an activity like this was not harassment. They already work in a harassment-free environment. But the twenty-first person in our example also has the right to work in a harassment-free environment.
The emphasis in the legal regulation is not on prohibiting hugging and joking, but on the employer’s obligation to ensure that their employees can feel motivated and be free of harassment when working. In essence, this means the employer’s obligation is to organise the work in such a way that the twenty-first person also feels good and can concentrate fully on their job. For example, the employer can update the work organisation rules so that all employees know where to go if they have concerns and how to resolve them in a professional manner. The managers should also make it clear that they do not accept harassment of employees and that any employee who reports his or her discomfort will be treated with the same respect as someone who says that they could work a lot faster if their office was ventilated better. Also, if someone tells a colleague that a manager/another colleague/someone in the audience, for example, has harassed them, then according to the work organisation rules the colleague should help ensure that this harassment stops, e.g. by reporting it to the designated colleague themselves, who will then ensure that an harassment-free working environment is guaranteed. This is how the employer can fulfil their obligation. The objective of the rules is to ensure a harassment-free working environment and to prevent the risk of harassment. These rules will also alleviate the managers’ fears of hugging their colleagues because they achieved something great at work and then being accused of harassment afterwards. Instead, certain people might notify them later that they do not like it – in which case they won’t be hugged the next time, and of course no one will be treated worse because of this. After all, it’s perfectly normal for people in every work collective to know where to turn if, for example, they cannot work properly because the room is too hot. This is not snitching. The rules will also alleviate the employee’s fears of being treated worse if they report an unpleasant incident. Either way, a solution has to be found – how to make the temperature in the workplace suitable or how to ensure that the collective can work without fear of harassment. We advise both employees and employers on these issues, avaldus@volinik.ee is a discreet option if you need advice or examples. The attitude of employers towards updating their rules has been very positive, as employers want all their employees to be able to focus fully on the performance of their work and for the discreet organisation of things to be clear even in the case of uncomfortable topics.
All this talk about rules does not concern offences against sexual self-determination, because these are cases where we talk about the possibility of years of imprisonment, which has nothing to do with harassment within the scope of possible breach of equality. These are two different things.
One of the components of harassment as an act is that it’s against someone’s will, the other is its sexual nature and the third is humiliation – thus, in the example given by us that is not related to an opera theatre, giving someone a welcome hug turns into harassment after the hugger has found out that this is against the other person’s will, but they still continue hugging the other person in a manner that is humiliating as well as sexual in nature. All in all, the goal of the legal regulation is to ensure that all employees can work hard in an environment of mutual respect.
