Ms. M. is employed in an association as a commercial employee. The chairman, Mr. O., employs a relaxed, permissive and joking inflection when communicating with his employees; occasionally, he includes sexually connoted remarks.

Mr. O. repeatedly makes insinuating remarks to Ms. M. Soon, she responds to this and occasionally retorts in an equally ambiguous manner.
Over time, Ms. M. deliberately sends sexually related messages to Mr. O. of her own accord, at times sharing pornographic sites.

Mr. O.'s subsequent statements and remarks show an objectively high sexual intensity.
A little later, Ms. M. terminates her employment on grounds unrelated to these exchanges. The Higher Regional Court, which was appealed to at second instance, denied Ms. M. a claim for damages on the basis of sexual harassment within the meaning of section 6 para. 2 no. 1 and section 12 para. 11 of the Equal Treatment Act. The court held that the facts of the case were not fulfilled.

Ms. M. was dissatisfied with this and subsequently challenged the judgment of the appellate court in an extraordinary appeal to the Supreme Court.