Over 30 % of women in Germany have experienced sexual workplace harassment. With the #MeToo movement having significantly raised awareness of sexual violence and harassment in Germany over the past years, employees report incidents more frequently. Employers are therefore faced with growing societal pressure to act proactively and respond transparently to complaints of sexual misconduct within their company.

Most recently, allegations against a German actor have reignited public discussion around sexual violence and illustrate the novel challenges resulting from the growing utilization of digital platforms and deepfake imagery. Harassment at work is increasingly taking place online, including through workplace tools or social media.

Employees expect a safe and respectful working environment, clear anti-harassment policies, accessible and confidential reporting channels, as well as consistent follow-through on complaints. Younger generations in particular expect an open workplace culture with low-threshold reporting mechanisms.

In Germany, employers have a strict statutory duty of care toward their employees. The primary legislation governing protection against sexual harassment in the workplace is the General Equal Treatment Act (AGG). Section 3(4) AGG defines sexual harassment as unwanted conduct of a sexual nature, including unwanted sexual acts and requests for such acts, physical contact of a sexual nature, comments of a sexual nature, and the unwanted showing or visible display of pornographic images. A single incident can suffice.

Employers must take preventive measures according to Section 12 AGG, including training and education, and make clear that harassment will not be tolerated (duty to prevent and inform). Section 12(3) AGG obliges employers to take appropriate action (such as warning letters, transfer or dismissal) against an employee who has sexually harassed a colleague (duty to act). If the employer fails to act, affected employees may refuse to perform their work without loss of pay.

Section 13 (1) AGG grants employees the right to file a complaint with a designated complaints body, which the employer must establish and promote. The complaint must be examined and the complainant informed of the outcome. Employees who file a complaint or refuse to comply with discriminatory instructions cannot be subjected to any detriment.

Employers may also be liable for material and non-material damages under Section 15 AGG, which have to be asserted in writing within two months of the incident and can be filed with the Labour Court within another three months. There is no statutory cap on non-material damages and the claim exists regardless of the employer's intent or negligence (strict liability claim). In addition, the Occupational Health and Safety Act (ArbSchG) requires employers to carry out risk assessments that include psychosocial hazards, of which sexual harassment is a recognised risk factor. Where a works council (Betriebsrat) exists, it has co-determination rights under Section 87(1) of the Works Constitution Act regarding workplace conduct rules and health and safety measures and may demand that the employer takes action against harassment. Failure to involve the works council where required may render measures unenforceable.

Key risks for employers include: uncapped non-material damages regardless of intent/negligence, reputational damage from public allegations, liability for failure to act against a harasser, and unenforceability of workplace measures taken without required works council involvement.

Employers may:

  • implement and promote a written anti-harassment policy or company agreement,
  • establish and promote a complaints body,
  • provide regular training for all staff and dedicated training for managers,
  • include psychosocial hazards (including harassment) in their risk assessments,
  • involve the works council where required,
  • investigate complaints promptly and document outcomes,
  • and provide aftercare and protection against victimisation for complainants.

Complete our short quiz below to find out what your organisation's sexual harassment "health check" score is.

You will need to complete all questions to receive your score. Please select the option closest to your organisation's current position if none of the options provided are an exact match.

If you have any questions about the issues raised in this health check tool or would like to discuss sexual harassment prevention more generally, please get in touch with Nadine Birke or Anne Nolde using the form below.