Workplace bullying and sexual harassment (acoso laboral y sexual), discrimination, hate speech and glorification of terrorism in companies: offences and penalties

Workplace bullying and sexual harassment (acoso laboral y sexual), discrimination, hate speech and glorification of terrorism offences in companies are forms of conduct which, within business relationships, may give rise to criminal liability when they seriously affect dignity, sexual freedom, equality or peaceful coexistence.

Not every bad business practice constitutes a criminal offence, but harassment, serious discrimination and the dissemination of hate messages may give rise to criminal liability for the individuals who commit them and, in certain cases, also for the company.

When is workplace bullying a criminal offence?

Workplace bullying (acoso laboral) is an offence against moral integrity. It is committed where, within an employment or civil service relationship, a person who takes advantage of a position of superiority repeatedly carries out hostile or humiliating acts which, although not amounting to degrading treatment, constitute serious harassment of the victim.

The conduct must go beyond an employment conflict, a professional disagreement or a debatable business decision. The offence requires:

• repeated conduct;
• a position of superiority;
• harassment serious enough to gravely undermine the worker’s dignity.

The legitimate exercise of the company’s powers of management, organisation and control does not constitute harassment, even if a decision is unpopular or creates tension.

The penalty is imprisonment of six months to two years. The offence may be committed by an employer, director, executive, middle manager or any superior who uses their position to harass a subordinate.

The legal person (company) may be criminally liable where the general requirements of corporate criminal liability are met and the offence was committed in its name or for its direct or indirect benefit by its representatives or by persons with organisational and supervisory powers. It may also be liable where the offence was committed by subordinates owing to a serious breach of the duties of supervision, monitoring and control.

In these cases, the penalty for the company is a fine of six months to two years (day-fine system), in addition to other measures that may affect its activities, establishments, public contracts or subsidies.

For example, there may be workplace bullying if a manager systematically excludes a female employee from meetings, ridicules her in front of her colleagues, assigns her degrading tasks and uses his hierarchical power to maintain a climate of humiliation for months.

What is the offence of sexual harassment at work?

The offence of sexual harassment (acoso sexual) consists of requesting sexual favours, for the offender or for a third party, within an employment, teaching, service provision or similar relationship, where the conduct places the victim in an objectively and seriously intimidating, hostile or humiliating situation.

The request may be made orally, in writing, by message or through unequivocal conduct. The offender does not need to obtain the favour requested. Nor is a relationship of superiority essential: the basic offence may occur between co-workers. Using a hierarchical position, or announcing harm relating to the victim’s employment expectations, constitutes an aggravated form.

Penalties for sexual harassment

• Basic offence: imprisonment of six to twelve months or a fine of ten to fifteen months, together with special disqualification from practising the profession, trade or activity for twelve to fifteen months.
• Employment, teaching or hierarchical superiority, or a threat to harm the victim’s legitimate expectations: imprisonment of one to two years and special disqualification for eighteen to twenty-four months.
• Victim in a situation of particular vulnerability owing to age, illness or disability: the penalty is imposed in its upper half.

The legal person (company) may be criminally liable. In that case it is given a fine of six months to two years and other penalties for companies may be ordered, such as suspension of activities, closure of premises, a ban on carrying out certain activities or judicial administration.

Not all sexually inappropriate behaviour reaches the level of the offence of sexual harassment. However, sexual conduct that creates an objectively humiliating, hostile or intimidating situation and does not constitute another more serious offence may be punished as a minor offence, following a complaint by the person affected. Moreover, the same conduct may have employment, disciplinary and civil consequences even if there is no criminal conviction.

An example would be an executive who makes the renewal of a female employee’s contract conditional on her agreeing to sexual encounters. If he also uses his hierarchical position to make that demand, the conduct falls within the aggravated form.

Discrimination in the company

The Spanish Criminal Code provides for a specific offence where there is serious discrimination in employment, whether public or private, on grounds such as ideology, religion, origin, race, ethnicity, sex, age, sexual orientation or sexual or gender identity, gender-based reasons, aporophobia, illness, disability, kinship with other workers, trade union representation or use of an official language.

For this offence to exist, equality before the law must not have been restored, nor the financial damage caused made good, following an administrative demand or penalty. The penalty is imprisonment of six months to two years or a fine of twelve to twenty-four months.

In the business sphere, it is also an offence for a person, in the course of their professional or business activity, to deny another person a service to which they are entitled on any of those grounds. This conduct is punishable by special disqualification from practising a profession, trade, industry or business for one to four years.

These offences are mainly directed at the individuals who take or carry out the discriminatory decision. The company may be required to bear civil liability for the damage, including non-pecuniary damage, and to restore the victim, where possible, to their previous situation. Discrimination occurring within the company’s organisational or management sphere may give rise to liability for the company if it has not complied with its prevention and protection obligations.

For example, there may be discrimination if a company systematically rejects candidates of a particular nationality or refuses a service to a person because of their sexual orientation, without a legitimate and objective business reason.

Hate offences in the business environment

The hate offence punishes certain public conduct that fosters, promotes or incites, directly or indirectly, hatred, hostility, discrimination or violence against groups or individuals on grounds such as race, ethnicity, nationality, religion, sex, sexual orientation or identity, gender, aporophobia, illness or disability.

The production, distribution or dissemination of material capable of promoting such conduct is also punishable, as are certain acts of serious humiliation, contempt or discredit against the protected groups.

The penalty depends on the form of the offence: it may be imprisonment of six months to two years and a fine of six to twelve months, or imprisonment of one to four years and a fine of six to twelve months. Dissemination over the internet or by means of information technologies results in the penalties being imposed in their upper half where the content is accessible to a large number of people. Removal, deletion or blocking of the content may also be ordered.

A company may be criminally liable for these offences where the conditions for corporate criminal liability are met. The fine laid down for the entity is two to five years, in addition to other measures that may extend to dissolution, suspension of activities, closure of premises or a ban on contracting with the public sector.

An example would be the use of a company’s corporate accounts to disseminate messages that present a racial or religious group as inferior and publicly promote its exclusion or violence against it.

What is the glorification of terrorism and what is the penalty?

Glorification or justification of terrorism (enaltecimiento del terrorismo) consists of publicly extolling or justifying terrorist offences or the persons who have taken part in them. Acts involving discredit, contempt or humiliation of victims of terrorism or their families are also punishable.

The penalty is imprisonment of one to three years and a fine of twelve to eighteen months. Where the acts are carried out over the internet, through the media or through electronic services accessible to the public, the penalties are imposed in their upper half. If the conduct is capable of seriously disturbing public peace or creating a serious feeling of insecurity or fear, the penalty is again imposed in its upper half and may be raised to the penalty of the next higher degree. The judge may order the removal, destruction, deletion or disabling of the content used.

A company may be criminally liable for terrorist offences where the conditions of the corporate criminal liability regime are met. In the case of glorification, the fine may be two to five years or, if higher, two to four times the harm caused. Measures such as suspension of activities, closure of establishments, a ban on carrying out certain activities or dissolution of the entity may also be imposed.

In the business sphere, the risk may arise where a company uses its communication channels, social media, publications or corporate events to publicly disseminate messages that glorify terrorist violence or humiliate its victims. Mere political criticism, ideological disagreement or a historical opinion do not in themselves amount to this offence: there must be genuine glorification, justification or humiliation of criminal relevance.

Civil liability and prevention in the company

Every offence that causes damage gives rise to an obligation to make it good. Compensation may cover physical, psychological, financial and non-pecuniary damage. In cases of harassment or discrimination, non-pecuniary damage may result from the infringement of dignity, equality, privacy or sexual freedom, although its assessment will depend on the circumstances proven.

The company may bear civil liability for offences committed by its employees, staff, representatives or managers in the performance of their duties. In addition, if the legal person is criminally convicted, it is jointly and severally civilly liable with the individuals convicted for the same acts.

Prevention requires:

• clear protocols against harassment and discrimination;
• internal reporting channels;
• training;
• diligent investigation of complaints;
• control measures over corporate communications and social media.

The mere formal existence of a protocol is not enough if the company does not apply it in a genuine, prompt and impartial manner.

Frequently asked questions