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Employer Obligations under Law

Laws should obligate employers to take all reasonable measures to create a safe working environment for women. For example, law in Benin requires that the head of an employment organization is responsible for taking all necessary measures to prevent sexual harassment. (See: Loi sur le Harcelement Sexuel, 2006) Finland requires that employers “ensure, as far as possible, that an employee is not subjected to sexual harassment.” See: Act on Equality between Women and Men, sec. 6. At a minimum this requires that employers respond immediately to allegations of harassment and take corrective action when necessary. Employer obligations under law should also include workplace policy development and dissemination, regular training, adoption of effective grievance and investigation procedures, as well as data collection and reporting.

Immediate Response

All laws should require that employers take immediate action with respect to sexual harassment claims. This involves documenting the complaint, taking measures to stop any alleged harassment, beginning an investigation, and providing support for the victim. In Belize, for example, an “employer shall take immediate and appropriate action to correct any act of sexual harassment towards employees in the workplace, where the employer, his agents or his supervisors know or are informed of such conduct.” See: Protection Against Sexual Harassment Act, Part ii, sec.4)

The EEO Trust of New Zealand has created a tool entitled Harassment and Bullying which contains a checklist with steps employers can take to prevent and respond to sexual harassment in the workplace. (last acc. 22 February 2012).

The ILO has produced a training tool, Framework Guidelines for Addressing Workplace Violence in the Health Sector – The Training Manual, specifically related to violence against women workers in the health sector. This manual aims to aid trainers in building awareness and capacity about increasing workplace violence in the healthcare sector and how to address it. Participatory exercises cover general rights and responsibilities, good practices in preventing and responding to workplace violence, and monitoring and evaluation of such measures. Potential users of the manual include a range of operators in the health sector such as members of professional associations, trade unionists, administrators, managers, trainers and decision-makers. The manual is also available in Spanish.

Zero Tolerance for Sexual Harassment – Code of Conduct for Employees , produced by the Alliance Against Sexual Harassment in Pakistan, is a manual to help employers and organizations to fully comply with the Protection Against Harassment of Women at Workplace Act 2010. The Act includes mandatory adoption of a Code of Conduct that prohibits sexual harassment in the workplace. After explaining specific terms used in the Code, the guide describes responsibilities of management, including establishing an inquiry committee for complaints by victims. Formal and informal procedures are then outlined, along with using an ombudsperson to hear complaints. Annexes provide a more detailed definition of sexual harassment, guidance for the inquiry process, and how to file sexual harassment complaints through the police. CASE STUDY – Chile
In 2003, the Supreme Court of Chile upheld a claim based on sexual harassment despite the absence, at that point, of any specific law prohibiting it. The plaintiff in the case had notified her supervisor’s superior of the ongoing harassment, but the employer did nothing to alleviate it. The plaintiff suffered emotionally and eventually had to take a medical leave for work-related stress as a result of continued sexual harassment by her direct supervisor. The court upheld the plaintiff’s claim of indirect dismissal resulting from a violation of section 184 of the Código del Trabajo, which requires employers to protect the health and safety of their workers. The court also noted article 19 of the Carta Fundamental (which recognizes every person’s right to life and physical and psychic integrity as well as to respect and protection of private life and personal and family honor) in condemning the employer’s lack of action. The court also stated that the employer did not act in good faith in the context of its performance of the employment contract. The court did not legally define sexual harassment, only stating that the plaintiff correctly characterized her situation as sexual harassment. A 2008 indirect dismissal claim was upheld on similar grounds when another employer was made aware of sexual harassment but did nothing to remedy the situation. See: Corte Suprema, 09/04/2003, 27092002 Giovanna Riveri Cerón con Fundación Comunicaciones Cultura Capacitación Agro; Corte de Apelaciones de Santiago, 27/05/2008, 44752007 Paola González Miranda con Rodríguez Peñaloza y Compañía.

CASE STUDY – South Africa’s Code of Good Practice

In South Africa, the National Economic Development and Labor Council (NEDLAC) has promulgated a Code of Good Practice on The Handling of Sexual Harassment Cases in the Workplace. Although not binding law, the code outlines guiding principles for the investigation of reports of harassment, confidentiality, training, and development of procedures for addressing sexual harassment. The code also provides guidelines on disciplinary procedures such as warnings for minor instances, transfer of the offender to a new position, or dismissal for serious conduct or continued harassment after warnings.

(See: Sexual Harassment and the Amended Code of Good Practice on the Handling of Sexual Harassment in South Africa, Women’s Legal Centre (2006); UN Secretary-General’s database on violence against women, Code of Good Practice on the Handling of Sexual Harassment issued under the Labour Relations Act.)

 

Policy Development
Laws should require employers to establish and publicize to all employees and non-employees in the workplace a policy prohibiting sexual harassment and encouraging employees and non-employees to report the behavior. In the Philippines, for example, employers are obligated to “[p]romulgate appropriate rules and regulations in consultation with and jointly approved by the employees… The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace.” See: Republic Act No. 7877, sec. 4. The policy should encourage reporting before the harassment becomes severe or pervasive. The organization should permanently post the policy in the workplace and review the policy periodically. The harassment policy of the organization should be adopted by an appropriate decision maker at the organization and should identify this decision maker as the person ultimately responsible for preventing harassment at the organization. The policy should state the range of disciplinary actions that may be taken against an employee who has sexually harassed another employee or who has retaliated against an employee who has made a sexual harassment allegation or who has served as a witness in a sexual harassment investigation. Policies should also provide for corrective action that will place an employee in the position she or he would have been in had the harassment not taken place. (See: Employer Responsibilities, StopVAW, The Advocates for Human Rights)

Tools: 

The Canadian Human Rights Commission has developed a Template for Developing an Anti-Harassment Policy to help employers meet their human rights obligations and that is especially designed for employers that may not have the time or resources to develop their own anti-harassment policy. Available in English.

The private human resources firm, Ius Laboris, has produced a legal guide to Sexual Harassment Prevention which includes suggested content for employer policies on sexual harassment in 36 countries around the world.

The Lagos Business School of the Pan-African University in Nigeria has posted sample sexual harassment policies for small and medium enterprises that include sample guidelines for, and actions to take as part of, an internal sexual harassment investigation – the samples are not based on any specific national legal framework.

Regular Training

  • Employers should be required under law to conduct training programs on sexual harassment prevention. Periodically, supervisors and managers should receive extensive training so that they may explain the organization’s sexual harassment policy to their staff and take steps to positively promote the policy. They should be trained to be responsive and supportive to any member of staff who complains about sexual harassment, provide full and clear advice on the complaint procedure, maintain confidentiality regarding all sexual harassment complaints, and take steps to prevent the occurrence of further harassing behavior.  
  • Employers should monitor the compliance of supervisors and managers with their responsibilities. Law in the U.S. state of California requires employers with more than 50 employees to provide sexual harassment training to supervisory employees every two years or within six months of hiring a new employee, and also lays out quality standards for the required trainings. Drafters may also want to consider other preventive measures, such as vetting requirements. During a vetting process, applicants for supervisory or managerial positions should be screened for a record of harassment and possibly rejected on the basis of such a record. (See: Christopher E. Cobey and David N. Goldman, Sexual Harassment Prevention Training Now Mandatory for California Employers; Employer Responsibilities, StopVAW, The Advocates for Human Rights)

Tool:

Employee Training on Sexual Harassment (The Advocates for Human Rights, 2009). Also available in Russian.

Investigation & Grievance Procedures
Laws should require that employers establish a complaints committee or designate a complaints officer outside the line of management whom victims of sexual harassment may approach for confidential advice or to make a complaint. Any complaints committee should have at least 50% representation by women. It is recommended that a third party (non-governmental organization or other body familiar with the issue) be involved in any complaints committee so as to avoid the possibility that senior levels of the organization would exert undue influence on the committee. Such a third party may include a trade union representative or co-employee or outside professionals. The committee should include members with experience in counseling, employee relations, and conducting investigations. The complaints committee or designated complaints officer should maintain confidential records of all harassment complaints, prepare an annual report summarizing the activities during the previous year, and forward a copy of the report to the head of the organization. For example, under Israeli law employers must “(1) prescribe an efficient procedure for filing a complaint in respect of sexual harassment and for the examination of the complaint; (2) deal efficiently with a case of sexual harassment or of adverse treatment which has come to his notice and do everything within his power to prevent the recurrence of the said acts and to rectify the harm caused to the complainant as a result of sexual harassment or adverse treatment.” See: Prevention of Sexual Harassment Law, sec.7; Employer Responsibilities, StopVAW, The Advocates for Human Rights.

Examples of Investigation Procedures:

Under the law of Costa Rica, once a sexual harassment complaint is made to an employer, the employer must appoint an Investigatory Committee that will investigate and impose a sanction in the event that the allegation is proven. Formal complaints must be investigated according to the following procedure:

  • With the exception of special cases, the investigatory process must not take more than three months.
  • The process must be directed by an Investigatory Committee, which must be composed of at least three people (a mix of both genders must be represented) with knowledge regarding sexual harassment and disciplinary processes. The committee does not have the power to impose disciplinary sanctions, but only to recommend them. The organisation’s General Manager is responsible for making the final decision regarding disciplinary actions.
  • The process must be conducted with absolute confidentiality.
  • The complainant must be protected from being dismissed from work for complaining, except where there is just cause that must be approved by the Ministry of Labour.
  • Both parties may seek a lawyer’s advice during the process. In addition, the law allows the complainant to choose someone to provide him or her with emotional support.
  • The processing of the complaint must follow certain principles, including due process, proportionality and privacy.
  • Both parties in the investigation process may provide any evidence they consider to be pertinent.
  • If there is doubt about the evidence, the Committee must rule in favour of the alleged victim.

See: Sexual Harassment Prevention, Ius Laboris, 2012, p. 112.

In the UK, disciplinary procedures for employees, whether related to sexual harassment or another type of misconduct are regulated by the Acas (Advisory, Conciliation and Arbitration Service) Code, which ensures that grievances are raised in writing, that employees making a complaint can be accompanied to meetings and hearings, that the outcome of processes are provided to employees in writing along with information about the right to appeal, and that meetings or hearings are managed by employees who can reasonably be considered to be impartial.

Reporting

Gathering data on and reporting about sexual harassment should be required by law so as to enable effective national policy action and coordination. (Cross link to Monitoring Chapter)

 

Examples:

In Sweden, for example, employers with 25 or more employees are required to submit a gender equality plan, which includes measures to combat sexual harassment, to the government every three years and are required to report on the implementation of their proposed measures. (See: Discrimination Act of 2008, sec. 13). 

The Workplace Gender Equality Agency in Australia requires private employers with more than 100 employees to report annually on six gender equality indicators, including on what specifically the employer has done to prevent and deal with sexual harassment.

 

CASE STUDY – The Case of Ntsabo v. Real Security

In November 2003, the Labour Court of South Africa, presiding in Cape Town, delivered its judgment in a landmark case that held an employer liable for failing to take any action to investigate reported sexual harassment or to protect its employee from such conduct. The case involved a female security guard who was repeatedly harassed and ultimately assaulted by a fellow employee. The employee reported the incidents to her supervisor and the employee’s brother made a complaint to the company’s head office after the assault on his sister. The company took no action and the employee ultimately resigned. The Labour Court stated that:

For the purpose of the EEA [Employment Equity Act], failure of the Respondent to attend to the problem brings the whole issue within the bounds of discrimination. The nub of the complainant laid with the Respondent involved sexual harassment. Its failure to attend to the matter is by definition…discrimination based on sexual harassment.

This was the first decision by a Labour Court in South Africa addressing the liability of an employer for sexual harassment as a form of discrimination based on sex. See: Bongiwe Ntsabo v. Real Security CC (Labour Court of South Africa (2003); Ntsabo v. Real Security, Women’s Legal Centre.

 

 

CASE STUDY – Costa Rica

The Act No. 7476 on Sexual Harassment in the Workplace and in Education prohibits sexual harassment in the workplace in Costa Rica and places certain duties on employers. Companies have an obligation to act quickly and diligently to resolve complaints of harassment in the workplace. Employers also are obligated to report incidents of sexual harassment to the Ministry of Labor. In a 2008 court case, a female employee of a refrigeration company received lewd emails and was the subject of unwelcome advances. The court chastised the company for not immediately reporting the incident to the Ministry of Labor and also explicitly said that this harassment was a form of discrimination in the workplace. For both reasons, the court fined the company 350,000 colones. See: Sentencia [S.] No. 00038, de las 23 Enero 2008, Sala Segundo de la Corte Suprema de Justicia [Supreme Court, Chamber II], Cons. IV.