Austrian Courts: No Protection for Lesbian Employee
04/12/2011
Submitted by
Rechtskomitee LAMBDA
Rechtskomitee LAMBDA: “Courts are undermining antidiscrimination legislation”
A lesbian employee complains against discrimination by a colleague and addresses the Chamber of Labour. The shop committee feels outraged and takes the matter to the company’s supervisory board. This board instructs the executive directors to take action. The directors then pressure the woman to sign consensual termination of contract, otherwise she would be dismissed. She submits and leaves the company. The Austrian Supreme Court sees no disadvantageous treatment and declares lawful the company’s actions …
The EU-Antidiscrimination-Directive (2000/78/EC) and the Austrian Equal Treatment Act prohibit discrimination in the workplace inter alia on the ground of sexual orientation. And they prohibit also any adverse treatment in reaction to a complaint against discrimination (“victimisation”). Without such protection against victimization there would be no effective protection against discrimination. So the Equal Treatment Act obliges victimizers to pay compensation to the victim.
If executive directors ask an employee to agree to termination of contract such employees usually feel threatened in their job security. Even more so if the driving force behind this pressure turns out to be the shop committee (which should protect the interests of the employee) what produces feelings of particular isolation. And it really gets excessive when the matter is even taken into the supervisory board of the company, gets subjected to outraged discussion there leading to instructions to the directors to take action. Such an order of events usually causes considerable feelings of distress, total isolation and helplessness in almost any employee so affected.
Interest in changing the job deprives of protection?
One could hardly imagine adverse treatment, in reaction to a complaint, worse than this one. Even more so, when the employee gets threatened with dismissal if she won’t agree to termination. Termination of contract as the unconditioned sanction for a complaint against discrimination: a classic case of victimisation.
Not so however for the Austrian courts. The Supreme Court has confirmed the judgments by the Regional Court for Civil Affairs of Graz and by the Upper Regional Court of Graz (as appeals court), which dismissed the claim for compensation. The high court judges said that they could not see disadvantageous treatment as the woman, more than two months (!) before the events, had considered to change to another company. Therefore the “consensual” termination of contract could not be considered as other-directed but should be seen as self-determined (OGH 25.10.2011, 9 ObA 113/11z). The Supreme Court judges also sanctioned the reasoning the Upper Regional Court of Graz had provided (26.05.2011, 7 Ra 13/11b), that the voluntary payment of one month salary in addition to the obligatory termination payments would count against non-self-determined termination of contract in this case.
Money makes self-determination?
None of the three courts ever has established that the woman wanted to leave her job at the time she had been pressured into “consensual” termination of contract. When an employee considers changing the job does that mean that she wants to go for sure? And does it say when she would like to do so? And can voluntary (additional) termination payment render a termination of contract self-determined any more than a later payment could render (sexual) harassment consensual?
Even one of the company’s executive directors saw the issue of self-determination different than the courts: “I am fully aware”, he testified in court, “that this always is disagreeable for a person so affected”.
From the first day in court the presiding judge at the court of first instance has asked the woman if she would not like to withdraw her case. Even if she would get compensation, money could not make good for the things happened …
„This case is a textbook example of how to undermine a good law“, says the president of Rechtskomitee LAMBDA (RKL) and counsel of the victim, Dr. Helmut Graupner, “The best statutes on the books are futile, if they are not enforced effectively in everyday life of the courts”.
More information: Rechtskomitee LAMBDA, (+43 1 876 30 61, +43 676 309 47 37), office@RKLambda.at; www.RKLambda.at
A lesbian employee complains against discrimination by a colleague and addresses the Chamber of Labour. The shop committee feels outraged and takes the matter to the company’s supervisory board. This board instructs the executive directors to take action. The directors then pressure the woman to sign consensual termination of contract, otherwise she would be dismissed. She submits and leaves the company. The Austrian Supreme Court sees no disadvantageous treatment and declares lawful the company’s actions …
The EU-Antidiscrimination-Directive (2000/78/EC) and the Austrian Equal Treatment Act prohibit discrimination in the workplace inter alia on the ground of sexual orientation. And they prohibit also any adverse treatment in reaction to a complaint against discrimination (“victimisation”). Without such protection against victimization there would be no effective protection against discrimination. So the Equal Treatment Act obliges victimizers to pay compensation to the victim.
If executive directors ask an employee to agree to termination of contract such employees usually feel threatened in their job security. Even more so if the driving force behind this pressure turns out to be the shop committee (which should protect the interests of the employee) what produces feelings of particular isolation. And it really gets excessive when the matter is even taken into the supervisory board of the company, gets subjected to outraged discussion there leading to instructions to the directors to take action. Such an order of events usually causes considerable feelings of distress, total isolation and helplessness in almost any employee so affected.
Interest in changing the job deprives of protection?
One could hardly imagine adverse treatment, in reaction to a complaint, worse than this one. Even more so, when the employee gets threatened with dismissal if she won’t agree to termination. Termination of contract as the unconditioned sanction for a complaint against discrimination: a classic case of victimisation.
Not so however for the Austrian courts. The Supreme Court has confirmed the judgments by the Regional Court for Civil Affairs of Graz and by the Upper Regional Court of Graz (as appeals court), which dismissed the claim for compensation. The high court judges said that they could not see disadvantageous treatment as the woman, more than two months (!) before the events, had considered to change to another company. Therefore the “consensual” termination of contract could not be considered as other-directed but should be seen as self-determined (OGH 25.10.2011, 9 ObA 113/11z). The Supreme Court judges also sanctioned the reasoning the Upper Regional Court of Graz had provided (26.05.2011, 7 Ra 13/11b), that the voluntary payment of one month salary in addition to the obligatory termination payments would count against non-self-determined termination of contract in this case.
Money makes self-determination?
None of the three courts ever has established that the woman wanted to leave her job at the time she had been pressured into “consensual” termination of contract. When an employee considers changing the job does that mean that she wants to go for sure? And does it say when she would like to do so? And can voluntary (additional) termination payment render a termination of contract self-determined any more than a later payment could render (sexual) harassment consensual?
Even one of the company’s executive directors saw the issue of self-determination different than the courts: “I am fully aware”, he testified in court, “that this always is disagreeable for a person so affected”.
From the first day in court the presiding judge at the court of first instance has asked the woman if she would not like to withdraw her case. Even if she would get compensation, money could not make good for the things happened …
„This case is a textbook example of how to undermine a good law“, says the president of Rechtskomitee LAMBDA (RKL) and counsel of the victim, Dr. Helmut Graupner, “The best statutes on the books are futile, if they are not enforced effectively in everyday life of the courts”.
More information: Rechtskomitee LAMBDA, (+43 1 876 30 61, +43 676 309 47 37), office@RKLambda.at; www.RKLambda.at
