by Serena Minervini
Article. 2087 c.c. protects the moral personality of the worker.
It is read in the device that “the entrepreneur is required to adopt in the exercise of the enterprise the measures that, according to the particularity of the job, the experience and the technique, are necessary to protect the physical integrity and the moral personality of the workers “.
One of the most frequent cases of violation of this requirement occurs in case of sexual harassment perpetrated to the detriment of the worker (obviously woman or man who is), by the employer or colleagues, even in conditions of non-supervision by the superior hierarchical.
The definition of sexual harassment in the world of work is at least problematic in the absence of a certain normative reference.
The Council of Europe resolution of 29.05.1990 provides a fairly comprehensive definition of sexual harassment.
It is defined as any behavior with a sexual connotation, or any other type of behavior based on sex, including that of superiors and colleagues, which offends the dignity of men and women in the world of work, unacceptable if:
– the behavior is unwanted, unreasonable and offensive to the people who suffer it;
– the refusal or acceptance of such behavior is used, explicitly or implicitly, to motivate a decision concerning access, professional training, employment, job retention, promotion, retribution or any other decision relating to employment;
– the behavior creates an intimidating, hostile or humiliating working environment for those who suffer it.
A ruling by the Court of Milan, synthetically, defines sexual harassment in the workplace as a set of “allusive appraisals, sexual jokes, slanting dinner invitations, continuous phone calls with constant sexual repercussions, approach through a kiss or proposals for approach “(Court of Milan, 30 January 2001).
In such cases, it is possible to compensate the non-pecuniary prejudice, as the fundamental rights of the victim are injured and they merit rest in the light of the combined provisions of the articles. 1218 c.c. and 2087 c.c.
In such hypotheses of damage there is, within it, the biological component (where sexual harassment has produced negative consequences on the victim’s health), and the existential component (where there are negative repercussions on the worker’s relationship life, upset from this episode), and the moral one (meaning as such the suffering, the anguish and the heart of mind tested after conducts of this nature).
It should be noted that, in the hypothesis of sexual harassment suffered at the workplace, the employer’s conduct results in an offense not only where it is directed to commit abuses of this kind, but also when it results in an omission of control of harassment from other employees.
Consequently, in the latter case, where the employer has not prepared all the necessary precautions to protect the physical integrity and moral personality of the employee, he is liable for the damage suffered by the worker.