PREVENTION AND FIGHT AGAINST HARASSMENT AT THE WORKPLACE: NEW PROCEDURES AND OBLIGATIONS FOR EMPLOYERS

In addition to the existing legislation promoting gender equality and safe work environment¹, without violence and harassment, the GD no. 790/2023, published in the Official Journal no. 939 of October 17, 2023, sets the norms to be enforced in private companies and public institutions, irrespective of their length, to prevent and fight against sex related harassment and moral harassment at the workplace.

The normative act supplements the existing legislation²  with new organization and procedural obligations for the employers, who must adopt a zero-tolerance policy with respect to moral and sex related harassment, to prevent and promptly investigate all the harassment claims.

Procedures for victim and the obligations of the employers

In order to ensure protection of the victims against harassment, the methodology comes with clear procedures, including methods to approach the harasser or to formulate and submit claims and /or complaints.

According to the definition enshrined under the law, „harassment is an unwanted behaviour, including of sexual nature, that makes a person feel offended, humiliated or intimidated. This includes cases where a person is asked to engage into sexual activities as a condition for being hired, as well as the cases where a hostile, intimidating or humiliating environment is created. Harassment involves several incidents and / or repetitive acts that account for physical, verbal and nonverbal harassment”.

Thus, qualifies as harassment both physical behaviour including unwanted physical contact between the victim and the harasser (inappropriate physical touch, physical violence or the use of threats or work-related rewards in exchange for sexual favours), as well as verbal behaviour (comments, stories, jokes or sexual comments, unwanted sexual invitations, insults related to the sex or other characteristics of the employee, extremely familiar observations and humiliating, degrading or sexually explicit messaging via different communication means such as phone or email).

Newly introduced obligations for employers under the GD no. 790/2023:

1. enforce the Guidelines for prevention and fight against sexual harassment and moral harassment at the workplace. Employers may adopt their own guide insofar as the terms and principles laid down in the GD 790/2023 are complied with;
2. appoint, under administrative deed, a person in charge or to form a commission made of 3 full members and a substitute to receive and settle claims / complaints;
3. form the Registry for harassment cases where claims / complaints will be recorded. The registry will provide for the registration number of the case, the phase of the harassment act, solutions identified;
4. provide in the Internal Regulations the provisions of the GO no. 137/2000 on prevention and sanctioning all forms of discrimination and of the Law no. 202/2002 on the equality of opportunity and treatment between women and men;
5. yearly inform and train employees via training courses on the methodology;
6. inform all the employees, through all the internal means of communication / information about the methodology adopted.

Procedural steps

1. Submission of the claim / complaint by the victim, formally or informally. If submitted formally, the complaint / claim can be made in written (handwritten or electronically, but mandatorily undersigned by the victim, with identification data being protected). An employee who deems to be victim of harassment can file a claim / complaint with the employer or with other institutions competent in the field (Labor Inspection, the National Council for Fight against Discrimination, the court, criminal prosecution bodies, as appropriate;

2. Casefile report: to be drafted by the person in charge / the commission appointed by the employer;

3. Investigation and settlement of the claim / complaint: claims / complaints are to be settled in maximum 45 working days since the date of submission.

Control and reporting

The Ministry of Labor and Social Solidarity, via the Labor Inspection, is in charge with checking whether the methodology is implemented and reports failures.

Employers will have to ensure the implementation of the Guidelines for prevention and fight against sexual harassment and moral harassment at the workplace within 6 months since the entering into force of this Methodology, failing which they face the sanctions provided under the GO no. 137/2000³.

Notes 

1. According to the law, a safe environment is a work environment where there is no discrimination based on race, nationality, ethnicity, language, religion, social category, beliefs, sex, sexual orientation, age, disability, non-contagious chronic disease, HIV infection, membership of a disadvantaged category or on the basis of any other criterion that has the purpose or effect of restricting, removing the recognition, use or exercise, under conditions of equality, of human rights and fundamental freedoms or rights recognized by law, in the political, economic, social and cultural or in any other areas of public life.
2. The national legislation in force: Law no. 202/2002 on equal opportunities and treatment between women and men; Law no. 53/2003 - Labor Code; Law no. 286/2009 on the Criminal Code; GEO no. 57/2019 of the Administrative Code; OG no. 137/2000 on the prevention and sanctioning of all forms of discrimination; GD no. 262/2019 for the approval of the Methodological Norms for the application of Law no. 202/2002 regarding equal opportunities and treatment between women and men.
3. The following, among others, are sanctioned with a fine: a) from 30,000 lei to 50,000 lei the employer's failure to fulfil the obligation to take any necessary measures in order to prevent and fight against acts of moral harassment at the workplace, including through the provision in the internal regulation of disciplinary sanctions for employees who commit acts of moral harassment at work; b) from 50,000 lei to 200,000 lei if the employer establishes, in any form, internal rules or measures that oblige, determine or encourage employees to commit acts of moral harassment at the workplace.