OPINION

The opinion was issued in the proceedings regarding the complaint filed by AA against Dr. BB due to discrimination based on gender. The complainant stated, among other things, that on one occasion, when she was substituting for his secretary and when he hosted eight friends in his office, he told her to look at the watch and to come in every five minutes and ask those present “what are the gentlemen going to drink, because they are from his party, and since he is the president of the party…” Also, that he insulted her in front of the guests, which culminated in a comment he made to one of his visitors, with the words: “Do you like her, do you want to f… her”, referring to the complainant. She also stated that she was forced to remain silent and endure and that he threatened to fire her. She further stated that on November 4, 2018, Dr. BB, who was the dean at the time, drew her towards him in front of the door of the dean’s secretary office and grabbed her bosom, which is why she said to him shocked, “what are you doing?”, “I will sue you for this”, at which he mockingly replied, “why are you going to sue me for grabbing your tit”. She also stated that cameras recorded the mentioned event but that the recording was deleted the following day. In the complaint, she stated that all of this was haunting her, and that is why she decided to initiate the proceedings, because she believes that it should be known that there exists support for all those who do not dare to speak. In addition, she stated that in … he was “mighty” and that he openly told her that she cannot do anything because he had asked a lawyer, and that she wanted the latest humiliation she experienced to be disclosed and punished. In the complaint, she proposed VV as a witness who can confirm her allegations. In this regard, the Commissioner obtained the witness statement, considering that following the Law on Prohibition of Discrimination, the complainant is obliged to provide evidence that makes the act of discrimination probable. The complaint was submitted to Dr. BB for a statement. In his statement, Dr. BB disputed the allegations of the complaint, stating that they were not true and that they were fabricated, and that he never belittled and insulted the complainant. He further stated that the allegations in the complaint that he forced the complainant to come into the office every five minutes to pour a drink were not true, and that based on such behavior, everyone would think that he was “mentally ill”, and he wonders how was it possible that “such a sick person was elected five times to the office of dean of the faculty, by secret ballot of the faculty staff”, and that at the end of his 15-year term as dean, he was elected vice-chancellor of the University, which he believes “sick people cannot be”. In his statement, he specified that he claims with full responsibility that AA verbally harasses VV almost every day, which can be found out from people whose offices are adjacent to the mentioned office, as well as that, during the period when he was dean, he received verbal reports that this happens, which made him react several times, and that it is surprising that VV never wanted to write a written statement about it. In addition, he stated that the complainant has secondary education, due to which he assigned her to an appropriate workplace, which is why the complainant verbally attacked him several times, stating that he did not give her an adequate workplace, and that he believes this is the only reason the complainant filed a complaint against him. The Commissioner for the Protection of Equality first states that during the proceedings, only those allegations from the complaint and the statement that are important for determining discrimination were analyzed. Allegations related to possible omissions in work or actions for which other state bodies are competent were not considered. In this regard, no evidence was presented, nor were witnesses heard regarding the events that were obviously not related to a violation of rights from the Law on Prohibition of Discrimination. Therefore, bearing in mind the subject of this complaint, the Commissioner focused on determining whether Dr. BB exposed the complainant to harassment and humiliating treatment based on her personal characteristic – gender. In this regard, applying the rule on redistribution and shifting the burden of proof from Article 45 of the Law on Prohibition of Discrimination is important. According to this rule, in this case, the complainant should make it probable that Dr. BB discriminated against her. If she succeeds, the burden of proving that the principle of equal rights and obligations was not violated due to that act lies with Dr. BB. According to the data from the complaint and the statement, it is indisputable that the complainant is employed at the Faculty of Technical Sciences in… and that Dr. BB is employed at the same faculty, where he served as dean for more than a decade. Also, it is indisputable that the complainant and Dr. BB collaborated directly on several occasions. Bearing in mind that the witness confirmed the allegations in the complaint regarding November 4, 2018, which she directly witnessed, the Commissioner focused on establishing the facts regarding this event. Following the rule on shifting the burden of proof, the Commissioner analyzed the allegations from Dr. BB’s statement that “everything stated in the complaint is not true and is fabricated.” In his statement, Dr. BB did not refer at all to the event of November 4, 2018, that is, he did not state whether he encountered the complainant on that day at all, and if so, what that encounter looked like and what happened on that occasion. Although he did not mention the event of November 4, 2018, Dr. BB referred in his statement to the fact that VV was proposed as a witness in these proceedings. However, he did not state that the witness would confirm that the allegations in the complaint were not true, that is, that the event described in the complaint did not happen, or that it happened differently, but only dealt with her relationship with the complainant, emphasizing that the complainant allegedly abused the witness almost daily. In her statement, the witness did not mention in any way that the interpersonal relations between her and the complainant were impaired. Moreover, she expressed empathy towards the difficult situation in which the complainant found herself, and fully confirmed the complainant’s allegations with a detailed description of the event of November 4, 2018, which she directly witnessed. As for the allegations that refer to expertise and rich professional experience, the Commissioner notes that the aforementioned is not the subject of the Commissioner’s analysis, nor is his expertise contested by the complaint. It also does not mean that someone with the professional competence to perform the work of a university professor cannot violate the regulations on the prohibition of discrimination and exhibit various forms of inappropriate behavior in the working environment. Also, in his statement, he pointed out that during his career none of the employees complained that he harassed and humiliated them and invited the Commissioner to ask around among the employees. Even if there were no previous complaints about Dr. BB’s behavior, that does not mean, nor is it evidence supporting the claim that he did not discriminate against AA on the critical day. In addition, the procedure before the Commissioner for the Protection of Equality is formal, and the decision is made based on the evidence submitted with the complaint and the statement on the complaint, and not by “asking around”. Bearing in mind all of the above and following Article 45 of the Law on Prohibition of Discrimination, Dr. BB did not prove that the event of November 4, 2018, took place differently from what was described in the complaint. Namely, he did not offer facts and evidence supporting the claim that on the disputed date, he did not harass and humiliate the complainant based on her personal characteristic – gender. After the proceedings, the Commissioner issued the opinion that on November 4, 2018, during the encounter with AA, Dr. BB committed an act of discrimination – harassment and humiliating treatment based on gender, thus violating the provisions of Article 12, in connection with Article 20, paragraph 1, of the Law on Prohibition of Discrimination and Article 10 of the Law on Gender Equality. Therefore, Dr. BB was recommended to send a written apology to AA for the harassment and humiliating behavior based on gender, as well as to refrain from harassing and humiliating actions towards the complainant in the future.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković