Sexual harassment in general, and sexual harassment at the workplace in particular, is a topic that has recently risen intensely to the public agenda. Israeli law establishes a series of actions that an employer must take in order to prevent sexual harassment and deal with events, and an employer may find itself responsible if it fails to act as required. How should an employer act under circumstances where an employee complains of being sexually harassed at the workplace?
The Israeli Prevention of Sexual Harassment Law and regulations promulgated thereunder also anchor the duties of an employer, as someone who owes a duty of trust to its employees, to prevent harassment at the workplace. The starting point is the responsibility of the employer to create and care for a working environment free from sexual harassment. As part of this, an employer must bring the prevention of sexual harassment to employees' awareness, inter alia, by publishing regulations to prevent sexual harassment among employees and by appointing a person who is responsible for preventing sexual harassment at the workplace. In any case of sexual harassment brought to the attention of the employer (in any manner), the employer must deal with the matter effectively and without delay and carry out a thorough and discreet investigation.
Among other things, the employer is required to collect all relevant testimonies, document the testimonies and the decisions, prevent the recurrence of the acts and even keep afar the complainants from the subjects of the complaint. If the employer determines that such harassment occurred, the employer must take disciplinary and punitive measures and do everything in its power to cure the damage caused to the complainants as a result of the harassment.
An employer failing to duly act is exposed to civil responsibility which is irrelated to the question of whether sexual harassment actually occurred. In a verdict given on December 2017, the Regional Labor Court in Nazareth discussed a case of a female student who filed a claim for sexual harassment against a lecturer and against the college that employed him. The claim against the lecturer was rejected, but the question raised was whether in circumstances where no sexual harassment was proven, the employer may still be liable for breach of such obligations. The Court held that in order to impose liability on an employer under the law it indeed need be proved that an employee committed an offense of sexual harassment but relief against the employer may also be granted without proof of sexual harassment if it is proven that the employer violated other obligations imposed on it, such as breach of fiduciary duty, lack of good faith, etc.
In light of the above, it is important that employers consult with a lawyer at the stage of formulating a policy to prevent sexual harassment at the workplace, and certainly at the stage where they have been informed of a case of sexual harassment and will do everything in their power to provide a safe work environment.