The first ‘MeToo’ case before the Supreme Court

| Insight

The Supreme Court judgment HR-2020-2476-A was the first time the Norwegian Supreme Court considered a sexual harassment case after the MeToo campaign. Below, the Supreme Court provides a clarification of the lower threshold for sexual harassment, and gives a thorough account of the conditions that must be met in order for an act to constitute sexual harassment. The decision provides useful guidance to employers who may have to deal with these types of issues in the workplace.

1. Background to the case
The case concerned a young, female employee in a mechanical workshop, who felt she had been sexually harassed by two of the enterprise’s customers. Customer No 1 had on one occasion, while the female employee was sitting on the floor in a forward-leaning position, performing work, put his hands on her lower back, under her top. On another occasion, the customer had extended his hand as if he were to grab the employee’s crotch, when he encountered her coming out of the break room. In the first incident, the employee had got up and left the room, and in the second, she had clearly expressed that she found his behaviour unacceptable.

Customer No 2 had, over a long period, been very contact-seeking vis-á-vis the employee, and had on several occasions poked her in the waist and tickled her. He had continued doing this even after she asked him to stop. On another occasion, the customer had slapped the employee’s bottom when he met her in a shop.

The employee brought legal action against Customer No 1 and Customer No 2, claiming compensation and damages for non-economic loss as a result of sexual harassment. The employee also brought legal action towards her employer, claiming compensation and damages for non-economic loss on grounds of the employer’s failure to act on the sexual harassment the employee felt she had been subjected to.

2. The Supreme Court`s assessment

2.1 Introduction
The question put to the Supreme Court was whether Customer No 1 and Customer No 2 had sexually harassed the employee.

The Supreme Court made a thorough assessment of the sources of law, starting with the Gender Equality Act Section 8 first paragraph on the prohibition against sexual harassment, which reads as follows:

‘Sexual harassment shall mean unwanted sexual attention that is troublesome to the person receiving the attention.’

The basic conditions that need to be met are thus that there must be ‘sexual attention’ that is ‘unwanted’, and that this unwanted sexual attention must be ‘troublesome’.

Please note that the prohibition against sexual harassment has now been included in the Equality and Anti-discrimination Act Section 13 first paragraph, cf. third paragraph. In the judgment, the Supreme Court comments that, although the wording of the new provision differs from the old, there is nothing to indicate that it entails significant changes in terms of content.

2.2 The assessment of whether Customer No 1’s behaviour was deemed to constitute sexual harassment
The question put before the Supreme Court was, firstly, whether the condition ‘sexual attention’ was met in that Customer No 1 put his hands on the employee’s lower back while she was working in a forward-leaning position. In its assessment, the Court of Appeal concluded that the act in itself did not come across as ‘overtly sexualised’, and the Supreme Court agrees with this, while also referring, however, to the fact that it is not a requirement. Concerning the condition ‘sexual attention’, the Supreme Court states that no more is required

‘than for the act to be of a sexual nature or sexually suggestive. Nor is it a requirement that the act was motivated by a sexual desire on the part of C, and it is of no significance whether he intended the touching as a joke.’

The Supreme Court concluded that the condition ‘sexual attention’ was met in that Customer No 1 put his hands on the employee’s bare back. Weight was given to the fact that the employee was in a vulnerable position while performing work, that Customer No 1 came from behind and that the employee thereby had no possibility of defending herself. The Supreme Court finds that the act must also be seen in light of the fact that the body part in question, in this context, must be considered relatively intimate.

The Supreme Court also briefly concluded that the act must have been considered undesirable by the employee, as she immediately got up and left the room. However, the Supreme Court does not directly consider the question of whether the act, seen in isolation, can be considered ‘unwanted’ in the legal sense, as the subsequent episode where Customer No 1 pretended he was about to grab the employee’s crotch must also be included in an overall assessment of whether A was sexually harassed.

The Supreme Court finds that the incident where the customer acted as if he were about to grab the employee’s crotch undoubtedly constitutes ‘sexual attention’ aimed at the employee. Since the employee, in the first episode, had shown that she did not want the attention, Customer No 1 should have understood that she did not care for this type of attention. The condition that the attention must be ‘unwanted’ was also deemed to be met.

However, the Supreme Court does not provide clarification of whether the incident where the customer put his hands on the employee’s back would constitute sexual harassment seen in isolation, but refers to how ‘there is much to indicate that the “back episode” in itself did not entail sexual harassment in violation of Section 8 of the Gender Equality Act of 2013’.

The final question before the Supreme Court was whether the two incidents combined were deemed to be ‘troublesome’, thereby constituting sexual harassment. The Supreme Court referred to the employee’s subjective experience of the attention and the consequences it has had for her. Furthermore, the Supreme Court referred to how, although the actions were not of the most serious nature, one of them involved touching of bare skin in a vulnerable situation where the employee was the only female, and engaged in work at the time. Emphasis was also placed on the power difference in the relationship between the customer and the employee.

Based on the above, the Supreme Court concluded that the two actions committed by Customer No 1 constituted sexual harassment of the employee. Customer No 1 was ordered to pay damages for non-economic loss in the amount of NOK 15,000.

2.3 The assessment of whether Customer No 2’s behaviour was deemed to constitute sexual harassment
The question was whether Customer No 2, by repeatedly poking and tickling the employee’s waist, and the incident in which he slapped her bottom, had directed ‘sexual attention’ towards her. The Supreme Court briefly concluded that the attention from Customer B seen as a whole must be deemed to be sexually suggestive enough to meet the condition, although the actions in themselves must be assumed to be at the lower threshold for meeting the condition. The Supreme Court emphasised that the behaviour was repeated, unnecessary and unwanted, and that he had been told to stop several times. Customer No 2 did not contest that the sexual attention was ‘unwanted’ and ‘troublesome’.

The Supreme Court concluded that Customer No 2 had sexually harassed the employee, and he was sentenced to pay NOK 20,000 in compensation.

2.4 What responsibility rests with employers?
The employee went on sick leave as a result of the incidents and informed her employer that she would not return to work unless the two customers were told they were not allowed into the workshop. The Court of Appeal referred to how employers have a duty under Section 13 sixth paragraph of the Equality and Anti-discrimination Act to preclude and seek to prevent sexual harassment. This means that employers must take preventive action such as introducing internal guidelines and notification procedures, and implementing any specific measures deemed to be relevant or necessary. The Court of Appeal concluded that the employer had clearly acted negligently and in a way that warranted criticism, in that the measures implemented as a result of the employee’s notification were in part inexpedient and in part insufficient to prevent and preclude further harassment. Nor were they suited to safeguard the employee’s right to a fully satisfactory psychosocial working environment.

On that basis, the employer was held jointly and severally liable for the employee’s financial loss of NOK 36,387. The Court of Appeal found no grounds for ordering the employer to pay damages for non-economic loss, as the employer, despite the lack of follow-up, could not be deemed to have acted with gross negligence. The employer did not appeal the Court of Appeal’s decision, and this question was therefore not part of the case before the Supreme Court.

Employers should note the Supreme Court’s specification of the threshold for sexual harassment and their responsibility for preventing harassment under Section 26 of the Equality and Anti-discrimination Act. What measures are considered sufficient and expedient will depend on the nature of the workplace and the specific circumstances in the case. If an employer becomes aware that sexual harassment is taking place, the employer is obliged to address the matter immediately, investigate what has happened and find expedient, appropriate measures to stop the harassment.

Our labour law group has extensive experience of cases concerning sexual harassment, including investigations in whistleblowing cases and advice relating to measures to prevent sexual harassment in the workplace.

For a more detailed analysis of the Supreme Court’s judgment, I recommend Episode 6 of SVW’s podcast Arbeids(retts)lunsj (‘Labour law lunch’), in which my colleagues Lill Egeland and Thorgeir Hole discuss the Supreme Court’s decision. Lill Egeland, Thorgeir Hole and Ingrid Fladberg Brucker have also written a book about sexual harassment in the workplace (‘Seksuell trakassering i arbeidslivet’), which discusses legal questions relating to sexual harassment, and can be useful for employers who would like to learn more about this topic.