Abstract
The problem of gender-based violence and harassment at work poses a universal threat to the integrity and dignity of people in the world of work, and in particular to disproportionately affected categories of workers, such as women workers, and their equal opportunities in the labour market, including accessing, remaining and advancing in employment. The need for protection against such a universal threat has already been addressed by certain international instruments (including recent international labour standards) and regional instruments. Nevertheless, legal approaches in comparative law are strongly influenced by the concepts of protection against “harassment and sexual harassment” enshrined in the legal systems of the United States on the one hand, and the European Union and various European states on the other.
The national legislation of North Macedonia addresses the issues of harassment and sexual harassment, as well as psychological harassment (i.e.mobbing) as issues, principally covered by the regulations in the fields of labour and equal opportunity and non-discrimination law. Hence, one of the main goals of this article is to contribute to an improved definition and understanding of the concept of gender-based harassment in the context of the Macedonian national legislation, and particularly of the legal regimes through which it can be addressed. Authors of this article also analyze the no less important elements in the system of protection against harassment, such as prevention and protection and legal remedies and sanctions for perpetrators of harassment.
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Notes
- 1.
International Labour Organization (2020a).
- 2.
- 3.
See International Labour Organization Convention No. 190 and Recommendation No. 206 on Eliminating Violence and Harassment in the World of Work.
- 4.
ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 1, a.
- 5.
Notable studies which have raised public awareness and strongly influenced the development of movements for protection against moral or psychological harassment in the workplace in Europe, are the publication of the Swedish psychologist Heinz Leymann ‘Psychological violence at work places. Two explorative studies’ of 1984, and of the French psychologist Marie-France Hirigoyen ‘Le harcelement moral, la violence perverse au quotidien’ of 1998. See Guerrero (2004); Lippelt (2010). In the United States, one of the first sources to use the term ‘sexual harassment’ is a book by psychiatrist Caroll Brodsky, entitled ‘The harassed worker’. See Schultz (1998).
- 6.
Husbands (1992).
- 7.
Chronologically, the most significant activities at the international level in relation to protection against gender-based violence and harassment, and in that regard against sexual harassment in employment, are the result of the work of the International Labour Organization and the UN Committee for the Elimination of Discrimination against Women (CEDAW). Although the ILO Convention No.111 of 1958, on Discrimination (Employment and Occupation) does not explicitly mention sexual harassment, the ILO Committee of Experts on the Application of Conventions and Recommendations, in its 1988 General Report, categorizes sexual harassment as a form of discrimination, which can be further subcategorized in the ‘quid pro quo’ and ‘hostile work environment’ form. In 1989, the ILO, at the Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment, identified the issue of sexual harassment as a health and safety matter. Also worth mentioning is Recommendation No. 19 on Violence against Women, adopted by CEDAW in 1992, which for the first time provides a clear definition of the term sexual harassment and outlines the actions that need to be taken to address this phenomenon.
- 8.
ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 1, b.
- 9.
ILO Violence and Harassment Convention, 2019 (No. 190), Art. 1, para. 2.
- 10.
Pillinger (2019).
- 11.
Pillinger (2019).
- 12.
Bakirci (1998).
- 13.
International Labour Organization (2020d).
- 14.
Dimusevska and Trajanovska (2017).
- 15.
State Statistical Office of the Republic of North Macedonia (2021).
- 16.
Petreski and Mojsoska-Blazevski (2015).
- 17.
Official Gazette of the Republic of Macedonia, no. 37/1996.
- 18.
Official Gazette of the Republic of Macedonia, no. 138/2014.
- 19.
Official Gazette of the Republic of North Macedonia, no. 24/2021.
- 20.
International Labour Organization (2020c).
- 21.
See Friedman and Whitman (2003).
- 22.
See Lerouget and Heber (2013).
- 23.
The first case in which U.S. jurisprudence recognizes a race-based hostile work environment, violating Title VII of the U.S. Civil Rights Act of 1964 (so-called Anti-discrimination Act), which provides for protection against discrimination in employment on the grounds of race, color, religion, sex or national origin is the case of “Rogers v. EEOC” (1971). The case is about a plaintiff (Hispanic worker, employed in a hospital) who alleges that her optometrist employers had discriminated against her on the basis of national origin by segregating patients along ethnic lines. See Shultz (1998).
- 24.
Five of the first seven cases that considered the question related to sexual harassment, found that the U.S Civil Rights Act of 1964, did not cover sexual harassment as a form of sex-based harassment. The positions taken by the courts in explaining the behavior of the defendants (usually male supervisors) in the context of the claims brought by the plaintiffs (usually female subordinates) for protection against sexual harassment were also striking. The courts considered (i.e. relativized) the relationship between the parties concerned, i.e. the behavior of the defendants, as ‘nothing more than a personal proclivity, peculiarity or mannerism’ (as in the case of Corne v. Bausch and Lomb, (1975), or “a controversy underpinned by the subtleties of an inharmonious personal relationship” (as in the case of Barnes v. Train, (1974). See Henken (1989).
- 25.
See Williams v. Saxbe (1976); Barnes v. Costle (1977).
- 26.
Hebert (1995).
- 27.
See Rubenstein (1983).
- 28.
One of the landmark cases in this regard, where the US Supreme Court first recognized a claim of hostile work environment sexual harassment was ‘Meritor Say. Bank v. Vinson’, In Meritor, the plaintiff (Ms. Mechelle Vinson, employed as an assistant branch manager with Meritor Savings Bank) alleged that Mr. Sidney Taylor (the manager of the office where she worked) subjected her to a three-year pattern of sexual harassment and abuse. Ms. Vinson estimated that she had sexual intercourse with Mr. Taylor between 40 and 50 times over a three-year period, stressing that her consent to engage in the sexual intercourse was due to fear of losing her job. In addition, Ms. Vinson alleged that Mr. Taylor publicly fondled her, exposed himself to her, and even forcibly raped her. Although the District Court accepted the defendant’s argument that no harassment existed because Ms. Vinson ‘voluntarily’ engaged in sexual intercourse with her supervisor, the Supreme Court rejected the District Court’s assessment of ‘voluntariness’, and instead asserted that the alleged sexual advances were unwelcomed and the plaintiff neither invited nor appreciated them. See Juliano (1992).
- 29.
Thorpe (1990).
- 30.
McColgan (2007).
- 31.
E.g. Hall v. Gus Construction Co. See Westman (1992).
- 32.
Burga de las Casas (2019).
- 33.
Hebert (1995).
- 34.
Official Journal L 039, 14/02/1976 P. 0040 – 0042.
- 35.
During this period, harassment related to sex and sexual harassment is subject to regulation by the EC soft law, through a number of legislative acts, such as: the European Parliament’s Resolution on Violence against Women of 1986; the European Council Resolution on the protection of the dignity of women and men at work of 1990; the European Commission’s Recommendation on the protection of dignity of women and men at work with the associated Code of Practice on measures to combat sexual harassment of 1991; the European Council Declaration on the implementation of the Commission Recommendation and Code of Practice of 1991; The European Parliament Resolution on a new post of a confidential counsellor at the workplace of 1994; etc.
- 36.
See Michael Rubenstein (1988).
- 37.
Official Journal L 180, 19/07/2000 P. 0022 – 0026, Article 2.3.
- 38.
Official Journal L 303, 02/12/2000 P. 0016 – 0022, Article 2.3.
- 39.
Official Journal L 204, 26.7.2006, p. 23–36.
- 40.
Art. 2.1 (c).
- 41.
Art. 2.1. (d).
- 42.
Art 2.2. (а).
- 43.
Ellis and Watson (2012).
- 44.
See Burga de las Casas (2019).
- 45.
The Framework agreement on harassment and violence at work was signed by the social partners: BUSINESSEUROPE, CEEP, UEAPME and the ETUC on 26 Aprlil 2007. The Framework Agreement, inter alia, provides a range of different forms of harassment and violence at work such as: physical, psychological and/or sexual; one-off or more systematic patterns; among colleagues, between superiors and subordinates or even by third parties such as clients, customers, patients or students; from minor cases of disrespect to more serious acts of harassment or violence, including criminal offences. See Blanpain (2014).
- 46.
Husbands (1992).
- 47.
See Meritor Say. Bank v. Vinson.
- 48.
E.g. in McLean v. Satellite Technology Services, Inc. (1987) where a female employee regularly offered to engage in sexual acts with other employees and often lifted her skirt to show her supervisor that she was not wearing undergarments, a single attempt by her supervisor to hug and kiss her was held not to be sexual harassment. See Cihon and Castagnera (2011).
- 49.
E.g. in Rabidue v. Oscola Refining Co. (1986), the court found no hostile environment even though the plaintiff was subjected to degrading language and sexually explicit posters. By describing the plaintiff’s personality with a list of mostly negative adjectives, the court implied that the plaintiff’s personality justified the behavior of the harasser. In Swentek v. USAir, Inc. (1987), the trial court found that the past conduct of Swentek (a flight attendant) and use of foul language meant that the harasser’s comments were not unwelcome even though she told the harasser (a pilot) to leave her alone”. However, the court of appeal, put a partial limitation on evidence of the plaintiff’s past conduct, noting that where the alleged harasser was not exposed to the plaintiff’s past conduct, such conduct could not form a basis for waiving legal protection against unwelcome harassment.
- 50.
Juliano (1992).
- 51.
Smith and Williams (2002).
- 52.
See, e.g., Harris v. Forklift Sys., Inc. (1993).
- 53.
See Goldman (2013).
- 54.
Lerouget and Heber (2013).
- 55.
Bernardt (2012).
- 56.
Ellis and Watson (2012).
- 57.
Directive 2006/54/EC, Art.19; Council Directive 2000/78/EC, Art.10; Council Directive 2000/43/EC, Art.8.
- 58.
See Graser et al. (2003).
- 59.
See Sophie Robin-Olivier (2010).
- 60.
Official Gazette of the Republic of Macedonia no. 62/05.
- 61.
Official Gazette of the Republic of Macedonia no. 79/2013.
- 62.
Official Gazette of the Republic of Macedonia, no.6/2012.
- 63.
Official Gazette of the Republic of North Macedonia no. 258/2020.
- 64.
See Каламатиев (2013).
- 65.
See LPAWH, Art.8, para 1, point 1.
- 66.
LRL, Art.11, para 2.
- 67.
LRL, Art.11, para 3.
- 68.
See: Judgments of the Appelate Court in Bitola (dated 09.10.2019, ROZH no. -834/13; dated 23.04.2020, ROZH no. -604-19;) Judgment of the Appelate Court in Skopje (dated 15.10.2014, ROZH no. -219/14; dated 15.09.2016, ROZH no. -316/15; dated 10.10.2013, ROZH no. -834/13; dated 24.10.2013, ROZH no. -775/13).
- 69.
According to a research conducted as part of a Study on the scope of various forms of sexual violence in the Republic of Macedonia from 2017, the following forms of sexual harassment in the workplace were recognized: abuse of position (demonstration of power); sexual blackmail (job loss); comments and jokes with sexual connotations; unwanted touches; issues of intimate life; sexually connoted proposals; exposure to pornographic material; employment based on physiognomy; comparison of physiognomy between colleagues with a detailed description; ambiguous comments, etc. See Dimusevska and Trajanovska (2017).
- 70.
LRL, Art.9, para 3.
- 71.
See Kalamatiev et al. (2011).
- 72.
LRL, Art.9, para 4 and LPAWH, Art.5, para 2.
- 73.
The ‘quid pro quo’ form of sexual harassment in North Macedonia, is implicitly regulated under criminal law as a crime against sexual freedom and sexual morality, that is, as sexual assault by position abuse. See Association for Emancipation, Solidarity and Equality of Women in the Republic of Macedonia (2011).
- 74.
In the last 10 years, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has sent several Observations and Direct Requests to the Government of North Macedonia on the alignment of the national regulations with international standards on equality and non-discrimination. In the most recent Observation dated in 2019 in the context of the implementation of the Discrimination (Employment and Occupation) Convention no. 111, the Committee of Experts reiterated its request to the Government of North Macedonia to clarify the dilemma whether the Law on Equal Opportunities for Women and Men includes the two forms of sexual harassment in the workplace, i.e. ‘quid pro quo’ and ‘hostile work environment’. Furthermore, the Committee of Experts, in the Direct Request dated 2020, once again requested from the Government of North Macedonia to submit information concerning: (i) the measures adopted by the labour inspectorate to prevent and address sexual harassment; (ii) the number of complaints filed and of cases detected; and (iii) the remedies available, and the sanctions imposed.
- 75.
LRL, Article 9-а, para 1.
- 76.
LPAWH, Article 5, para 1.
- 77.
For instance, such position has been taken by the Appellate Court in Skopje, which, in its Judgment dated 08.11.2018 (ROZH-1422/18) states that ‘the plaintiff has worked at the job from the time of appointment of the defendant as the new director of the institution until the time of filing the lawsuit at hand less than six months, which is the minimum requirement for establishing the existence of psychological harassment in the workplace’. In another case, the Appellate Court in Bitola, in its Judgment dated 03.10.2017 (ROZH-529/17), stated that ‘the harassment activities should be very intensive at least once per week or should occur in the course of a longer period of time of at least six months’.
- 78.
See the following Judgments of the Appellate Court in Skopje: Judgment dated 10.10.2013 (ROZH no. -834/13); Judgment dated 15.10.2014 (ROZH no. 219/14); Judgment dated 15.09.2016 (ROZH no. 316/15).
- 79.
LRL, Article 43.
- 80.
Official Gazette of the Republic of Macedonia, no. 92/2007.
- 81.
LPAWH, Article10 and Article 11.
- 82.
See LPAWH, Article 5, para. 3.
- 83.
See LPAWH, Article 17.
- 84.
See LPAWH, Article 17.
- 85.
See LPAWH, Article 12.
- 86.
See LPAWH, Article 24, para. 5.
- 87.
LPAWH, Article 22, para. 2.
- 88.
LPAWH, Article 22, para. 3.
- 89.
See LPAWH, Article 31.
- 90.
Official Gazette of RM No. 79/05.
- 91.
See Law on Courts (Official Gazette of R. Macedonia no. 58/06), article 30, paragraph 2, indent 9.
- 92.
See Law on Courts, article 33, paragraph 1, indent 1.
- 93.
See Law on Courts, Article 35, para. 1, indent 4.
- 94.
See Law on Civil Procedure, Article 372, para. 3, indent 3.
- 95.
For example, the Supreme Court dismissed the motion for review of a second instance judgment in a case of discrimination and psychological harassment in the workplace with a value of MKD 610,000.00, (Rev 3. no. 105/2014). See Macedonian Association of Young Lawyers (2014).
- 96.
See LPAWH, Article 22, para. 3.
- 97.
See LPAWH, Article 33.
- 98.
See: Judgment of the Appellate Court Skopje (ROZH 316/15), Judgment of the Appellate Court in Bitola (ROZH 589/18).
- 99.
It is considered that the first judgment finding psychological harassment-mobbing in the country was adopted only in 2016. By Judgment of 2016 (RP-215/14), the Basic Court Skopje II Skopje found that the plaintiff was psychologically harassed by two persons (defendants), who, through their actions, caused him mental anguish, fear, degradation and violated his dignity, honour, and reputation, with the ultimate goal of making him resign his employment. In a procedure upon an appeal by the defendants, the Appellate Court in Skopje adopted the Judgment (ROZH-86/18) reversing the judgment of the Basic Court Skopje 2 and dismissing the claim. However, in a review procedure, in February 2020 the Supreme Court of RNM, by a Judgment in Review (Rev. 3, no. 15/2018) reversed the judgment of the Appellate Court and upheld the judgment of the Basic Court Skopje 2.
- 100.
See Macedonian Association of Young Lawyers (2014).
- 101.
See LPAWH, Article 27.
- 102.
See LPAWH, Article 34.
- 103.
See LPAWH, Article 32.
- 104.
See LRL, Article 100.
- 105.
See LPAWH, Article 29, para. 2.
- 106.
World Bank Group (2019).
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Kalamatiev, T., Ristovski, A. (2023). Legal Approaches to Protection Against Gender-Based Violence and Harassment at Work with a Particular Focus on the Situation in the Republic of North Macedonia. In: Carapezza Figlia, G., Kovačević, L., Kristoffersson, E. (eds) Gender Perspectives in Private Law. Gender Perspectives in Law, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-031-14092-1_8
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