Austria: Disability-based Harassment by Co-workers

The Austrian Supreme Court has held that employees who are discriminated against because of a disability may claim damages from the abusing co-worker under the Employment of Disabled Persons Act (Behinderteneinstellungsgesetz; BEinstG), even if the colleagues do not work in the same hierarchical structure.

Facts

An employee (the defendant) made disparaging comments about a blind work colleague (the victim). This happened repeatedly in the presence of other colleagues and within earshot of the victim.

The defendant and the victim did not work in the same department, but met regularly in the common mailroom. The situation was bad enough that even other employees asked the defendant to stop.

Eventually, the victim turned to her employer, who initiated conciliatory proceedings. However, the situation did not change. The victim was ultimately forced to turn to psychotherapeutic help.

Claim

The victim claimed damages from the defendant of EUR 1,411.20, consisting of:

  • minimum compensation of EUR 720.00 according to section 7i of the BEinstG, and
  • reimbursement of the costs for psychotherapeutic treatment of EUR 691.20.

The defendant raised the following objections in defence:

  • She and the victim were not in an employment or other legal relationship.
  • Her statements were not directed at the victim's disability.
  • She and the victim did not work in the same department, nor was there any kind of hierarchical relationship between them.
  • Her statements did not establish an "intimidating, hostile, degrading or humiliating" environment, as required by the BEinstG.

Judgment

The lower courts held that not only employers but also work colleagues could be liable for such damages. Also, the non-discrimination rule applied to all colleagues in a company, not just those who worked within the same hierarchical structure. This was confirmed by the Supreme Court.

According to section 7d of the BEinstG, harassment exists "if in conjunction with a disability, a person is subjected to undesirable, inappropriate or objectionable behaviour that is intended as or results in an attack on the dignity of the person concerned and the establishment of an intimidating, hostile, degrading or humiliating environment for the person concerned".

In the case in question, the Supreme Court found that the defendant's statements hurt the dignity of the victim and created an intimidating and humiliating environment. A disability may not give rise to any kind of discrimination in the work environment. If the law only sanctioned harassment directly linked with the disability, the non-discrimination rule could be easy to circumvent, reasoned the Court.

According to the Court, it is sufficient that part of the motivation for the abuse is the protected characteristic. Hence, applicability of the non-discrimination rule does not require that the harassment exclusively relates to a specific disability, such as blindness in the present case. A sufficient causal connection exists if the statements at issue refer to the disability or its characteristics.

On this basis, the Supreme Court held that the defendant was liable for the claimed damages.

Commentary

The initial point for the implementation of the non-discrimination rule into the BEinstG was Directive 2000/78/EC. In 2004, the Directive was transposed for all other groups of employees affected by discrimination, via amendment to the Equal Treatment Act (Gleichbehandlungsgesetz) .

The BEinstG forbids any kind of direct or indirect discrimination in the workplace on the ground of disability. Harassment is discrimination under section 7d of the BEinstG. The connection between the harassment and the disability is indicated if the harassing statement referred to the disability itself, a characteristic related to the disability or a weakness caused by the disability.

In the case in question, the lower courts found, in particular, that the defendant's statement "she's getting uglier and uglier" was linked to the disability since the victim could not "see" herself or the looks of others. It can thus be argued that the most relevant factor in this case was the victim's lack of visual sensory perception.

Employer's obligation

Employers are required to react as soon as a victim of discrimination turns to them, otherwise they may be liable for damages. However, there are no formal legal remedies that the employer is obliged to pursue.

Having reference to judgments regarding other forms of discrimination, it may be argued that the conciliatory proceedings in this case were not sufficient to protect the victim. It could thus be further argued that the continued harassment required the dismissal of the defendant. However, as the victim sued her colleague and not the employer, the sufficiency of the measures taken by the employer were not analysed in detail by the courts.

According to section 7i of the BEinstG, a person who has been harassed or discriminated against may claim from the abuser:

  • restitution of actual pecuniary loss and
  • related damages, but in no case less than EUR 720.

It should be noted that the Austrian civil law severely restricts claims for compensation for immaterial damage. Also, according to Austrian case law, compensation for immaterial damage, such as in this case, has tended to be limited.

Hierarchical structure not determinative

In its prior judgments, the Austrian Supreme Court had consistently held that the non-discrimination rule of the BEinstG applied solely to relationships between staff members and their superiors. In this case, however, the Supreme Court held for the first time that employees may also be held liable for damages with respect to all colleagues at work, irrespective of their hierarchical position in the company.

In this context, another legal aspect of the BEinstG becomes apparent. Under the BEinstG, only begünstigte Behinderte (literally "advantaged disabled") enjoy special protection against dismissal. According to the BEinstG, begünstigte Behinderte are persons with at least 50 percent disability.

By contrast, the non-discrimination rule protects all disabled persons. A disability in the meaning of this rule only requires a non-temporary disability (i.e. expected to last longer than six months) in the form of

  • a physical, mental or psychological impairment, or
  • an impairment of the sensory organs

which is likely to hinder participation in working life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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