Austria: Disability-based Harassment by Co-workers

Last Updated: 12 July 2010
Article by Hans-Georg Laimer and Laleh Behrus
Most Read Contributor in Austria, September 2019

The Austrian Supreme Court has held that employees who are discriminated against because of a disability may claim damages from the abusing co-worker under the Employment of Disabled Persons Act (Behinderteneinstellungsgesetz; BEinstG), even if the colleagues do not work in the same hierarchical structure.


An employee (the defendant) made disparaging comments about a blind work colleague (the victim). This happened repeatedly in the presence of other colleagues and within earshot of the victim.

The defendant and the victim did not work in the same department, but met regularly in the common mailroom. The situation was bad enough that even other employees asked the defendant to stop.

Eventually, the victim turned to her employer, who initiated conciliatory proceedings. However, the situation did not change. The victim was ultimately forced to turn to psychotherapeutic help.


The victim claimed damages from the defendant of EUR 1,411.20, consisting of:

  • minimum compensation of EUR 720.00 according to section 7i of the BEinstG, and
  • reimbursement of the costs for psychotherapeutic treatment of EUR 691.20.

The defendant raised the following objections in defence:

  • She and the victim were not in an employment or other legal relationship.
  • Her statements were not directed at the victim's disability.
  • She and the victim did not work in the same department, nor was there any kind of hierarchical relationship between them.
  • Her statements did not establish an "intimidating, hostile, degrading or humiliating" environment, as required by the BEinstG.


The lower courts held that not only employers but also work colleagues could be liable for such damages. Also, the non-discrimination rule applied to all colleagues in a company, not just those who worked within the same hierarchical structure. This was confirmed by the Supreme Court.

According to section 7d of the BEinstG, harassment exists "if in conjunction with a disability, a person is subjected to undesirable, inappropriate or objectionable behaviour that is intended as or results in an attack on the dignity of the person concerned and the establishment of an intimidating, hostile, degrading or humiliating environment for the person concerned".

In the case in question, the Supreme Court found that the defendant's statements hurt the dignity of the victim and created an intimidating and humiliating environment. A disability may not give rise to any kind of discrimination in the work environment. If the law only sanctioned harassment directly linked with the disability, the non-discrimination rule could be easy to circumvent, reasoned the Court.

According to the Court, it is sufficient that part of the motivation for the abuse is the protected characteristic. Hence, applicability of the non-discrimination rule does not require that the harassment exclusively relates to a specific disability, such as blindness in the present case. A sufficient causal connection exists if the statements at issue refer to the disability or its characteristics.

On this basis, the Supreme Court held that the defendant was liable for the claimed damages.


The initial point for the implementation of the non-discrimination rule into the BEinstG was Directive 2000/78/EC. In 2004, the Directive was transposed for all other groups of employees affected by discrimination, via amendment to the Equal Treatment Act (Gleichbehandlungsgesetz) .

The BEinstG forbids any kind of direct or indirect discrimination in the workplace on the ground of disability. Harassment is discrimination under section 7d of the BEinstG. The connection between the harassment and the disability is indicated if the harassing statement referred to the disability itself, a characteristic related to the disability or a weakness caused by the disability.

In the case in question, the lower courts found, in particular, that the defendant's statement "she's getting uglier and uglier" was linked to the disability since the victim could not "see" herself or the looks of others. It can thus be argued that the most relevant factor in this case was the victim's lack of visual sensory perception.

Employer's obligation

Employers are required to react as soon as a victim of discrimination turns to them, otherwise they may be liable for damages. However, there are no formal legal remedies that the employer is obliged to pursue.

Having reference to judgments regarding other forms of discrimination, it may be argued that the conciliatory proceedings in this case were not sufficient to protect the victim. It could thus be further argued that the continued harassment required the dismissal of the defendant. However, as the victim sued her colleague and not the employer, the sufficiency of the measures taken by the employer were not analysed in detail by the courts.

According to section 7i of the BEinstG, a person who has been harassed or discriminated against may claim from the abuser:

  • restitution of actual pecuniary loss and
  • related damages, but in no case less than EUR 720.

It should be noted that the Austrian civil law severely restricts claims for compensation for immaterial damage. Also, according to Austrian case law, compensation for immaterial damage, such as in this case, has tended to be limited.

Hierarchical structure not determinative

In its prior judgments, the Austrian Supreme Court had consistently held that the non-discrimination rule of the BEinstG applied solely to relationships between staff members and their superiors. In this case, however, the Supreme Court held for the first time that employees may also be held liable for damages with respect to all colleagues at work, irrespective of their hierarchical position in the company.

In this context, another legal aspect of the BEinstG becomes apparent. Under the BEinstG, only begünstigte Behinderte (literally "advantaged disabled") enjoy special protection against dismissal. According to the BEinstG, begünstigte Behinderte are persons with at least 50 percent disability.

By contrast, the non-discrimination rule protects all disabled persons. A disability in the meaning of this rule only requires a non-temporary disability (i.e. expected to last longer than six months) in the form of

  • a physical, mental or psychological impairment, or
  • an impairment of the sensory organs

which is likely to hinder participation in working life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions