Sexual harassment in the workplace has once again hit the spotlight, reconfirming that it is an ongoing global issue. The following article was first published on the Latin American Corporate Counsel Association’s website on 3 November 2017. In it, lawyers from across Latin America provide an overview of the legal obligations on companies dealing with sexual harassment.
Over the years, countries within Latin America and the Caribbean have taken great steps to improve their regulations and public policy initiatives to tackle some of the manifestations of violence in the workplace, including but not limited to, sexual harassment. Alvaro González-Schiaffino and Jorge De Presno, partners at Basham, Ringe y Correa, Eduardo Juan Viñales of Funes de Rioja & Asociados, Enrique Munita, of Munita, Olavarria & Saez, José Antonio Valdez from Estudio Olaechea, and José Carlos Wahle from Veirano Advogados explain what this means for companies in their jurisdictions. All the firms are members of Ius Laboris, the world’s largest labour and employment law firm alliance.
Thirteen countries across Latin America and two from the Caribbean have legal regulations in place surrounding sexual harassment. Some take the form of a special law, others classify it as a type of crime in their penal codes. Alternatively, they are integrated into labour and employment laws or into specific regulations which protect against such violence.
Sexual harassment typically involves a pattern of behaviour. It can also take the form of a single incident involving a wide range of behaviours, from glances and rude jokes to demeaning comments based on gender stereotypes and even sexual assault and other acts of physical violence.
Although the legal definition varies from country to country, a comprehensive definition considers sexual harassment as any unwelcome sexual advance, request for sexual favours, verbal or physical conduct or gesture of a sexual nature, as well as any other behaviour of a sexual nature that might reasonably be expected or be perceived to cause offense or humiliation to another. This type of harassment creates an intimidating, hostile, or offensive work environment. Local GCs must therefore ensure their companies are implementing the necessary measures to prevent and remedy sexual harassment in the workplace and ensure these are in line with country-specific sexual harassment provisions. Below is an overview of provisions in some of the region’s biggest markets.
An awareness of the concept of sexual harassment has been present in the labour environment for decades. It is generally considered as an offense that enables the company to dismiss the offender, depending on the situation.
Provisions for sexual harassment in the workplace have been evolving in line with various legal cases, as there is currently no specific disposition in the labour legislation.
Despite this, Argentina has signed several international treaties, such as the Convention on elimination of all forms of discrimination against women (CEDAW), the Convention to erase and punish all kinds of violence against women and the declaration of elimination of all violence against women, which was adopted by the General Assembly of the United Nations. Argentina has also ratified the Inter American Convention of Belem do Pará and assumed the obligation to create specific legislation on the matter.
Law No. 25.087 indirectly approaches the matter regulating criminal offences against sexual integrity. Under the Act, abuse perpetrated with the use of authority or dependence between the offended party and the offender is considered as a crime. There is also a law that provides integral protection to women. While it is a gender protection act and is exclusively applicable to women, it does not specifically cover situations of sexual harassment in the workplace. Instead it is an indirect approach in which discrimination is the major offence and from that concept, it can be deduced that sexual harassment is a cause of discrimination (Law 26.485).
Finally, from a labour standpoint, there are no specific regulations or general labour law rules that apply. Various court cases have reinforced employers’ responsibility to take note of possible sexual harassment committed by employees against other employees, granting the statutory seniority severance plus an extra severance due to non-contractual damages. Companies must therefore pay reparations for moral damages to the victim when an incident occurs and if there is any psychological damage, employees are also able to claim damages as they would for a physical workplace injury.
In Brazil, sexual harassment has been a criminal offense since 2001. It is also a violation of civil and constitutional rights and a breach of the employee’s duties. The offender is subject to criminal prosecution, to a civil claim for damages and to dismissal for cause, forfeiting severance payments.
The company has a duty to provide its employees with a harassment-free workplace. Accordingly, it must orient, supervise and discipline its employees to secure compliance with the labour laws. If there is a case of sexual harassment within the workplace, the company is liable for damages to the victim. The company’s diligence in fulfilling its duties will determine the extension of such damages. However, the company will not be liable if the harassment does not happen within its premises and under its supervision. Damages vary according to the circumstances and are usually between US$10,000 and US$100,000.
Diligence and continuous education are instrumental for the avoidance of any corporate liability. Hotlines and independent investigations are also essential measures to deliver the message that the company will not tolerate harassment. If there is a reported case of harassment, the company must immediately conduct a swift and confidential investigation and deliver the appropriate disciplinary action. Discretion is of the essence, or the harasser may have a claim for unlawful exposure of a disciplinary action. The company can dismiss the alleged offender at any time, but before doing so the circumstances surrounding the matter must be considered and investigated very carefully.
Sexual harassment is perceived as a conduct that is incompatible with an individual’s dignity. According to Article 2 of the Labour Code, sexual bullying is understood as “a person acting inappropriately or making sexual advances, not consented to by the person who received such advances, and who threatened or harmed that person’s place of work or their employment opportunities.”
Conduct constituting sexual harassment are not limited to physical contact. They include any action by the harasser over the victim that might construe harassment, including verbal propositions, email, personal letters or messages, threatening or damaging the employee’s work situation or work opportunities.
The law recognises that sexual harassment is configured not only when the person affected suffers direct damage or prejudice in his or her situation within the company, but also when due to the creation of a hostile and offensive work environment, it has jeopardised his or her work situation or opportunities at work.
The law also intends to broaden its punitive stance on any occurrence of sexual harassment in the workplace by looking at the issue in respect to possible harassment among co-workers rather than just from an employer/employee perspective.
Within the legal regulations framework, the employer is responsible for doing their utmost to prevent such situations and for maintaining a work environment which is free from harassment. If sexual harassment occurs in the workplace, the employer can take disciplinary action against the harasser, including dismissal. In fact, Chilean law stipulates that any conduct of sexual harassment is a ground for termination of the employment contract.
The Mexican federal labour law justifies grounds for dismissal when an employee takes part in any act of violence, threats, verbal abuse or mistreatment against a co-worker, the employer, the employer’s family as well as any company employees outside of the workplace.
It should also be considered that staff can end their own employment if the employer fails to reprimand or tolerates sexual harassment from other employees. In such a case, the affected employee must file a claim with the labour authorities to conduct an on-site inspection. Employers found responsible for any discriminatory conduct, sexual assault or sexual harassment or for allowing such conduct to take place are liable to receive a fine ranging from 250 to 5,000 times the minimum wage (USD$1,111.00 to USD$22,233 in 2017). This is known as a “constructive termination.”
From a criminal law standpoint, sexual harassment maybe considered a criminal offence and damages could be sought by the victim. If the harasser is a public official and has used their means or powers related to their position, then they will be removed from office.
Any legal action employees take against companies must be accompanied by supporting evidence to demonstrate workplace harassment. This evidence may be difficult to obtain, however, as often there are no witnesses, photographs, tapes or documents available.
Current legislation specifically regulates this matter through Law number 27942: the “Law of Prevention and sanction of Sexual Harassment” and its regulations.
These regulations define sexual harassment as any conduct or behaviour of a sexual nature or connotation, unwanted or rejected by the person against whom it is directed, and affects the dignity of the person.
Evidence must be submitted to prove that sexual harassment occurred. It must also be proven that: the rejection of any sexual conduct requested of the victim may result in a direct adverse effect on their employment status; and that the harasser’s conduct, whether explicit or implicit, alters the employee’s work, interfering with the performance of his or her work creating an intimidating, hostile or offensive environment.
To avoid any liability, employers should establish prevention and sanction measures; train workers on the policies against sexual harassment in the company; take the necessary measures to cease acts; establish an internal preventive procedure for complaints of sexual harassment, which must be made known to all workers; and inform the Ministry of Labour of any reported case.
There are different complaint procedures, depending on whether they are private or public-sector workers.
The complaint procedure under the private regime lasts approximately 20 days. Following thorough investigation and analysis of the evidence presented, the employer must issue a reasoned resolution stating that the complaint is founded or unfounded, and the penalty to be applied if applicable. The applicable sanctions will depend on the severity; thus, they must be proportional, and may be in the form of: a verbal or written warning; suspension; or dismissal, among others.
If the harasser is the employer, management personnel, senior employee, owner, associate, director or shareholder, the harassed worker has the choice of requesting that the hostility is immediately stopped, or demand the payment of an indemnity and a termination of the employment contract.
As part of the legal responsibility to deal with sexual harassment, all employers must implement effective and accessible complaint procedures for employees and other workers within the workplace.
A good complaint procedure conveys the message that the company takes sexual harassment very seriously and ensures that complaints are dealt with consistently and in a timely manner. It also emphasises what constitutes patterns of unacceptable conduct and highlights the need for prevention strategies in particular areas.
With the above in mind, employers should consider the following to assist in the prevention and remedy of sexual harassment in the workplace:
• develop and issue a policy prohibiting harassment in general, including, of-course, sexual harassment;
• keep tabs on the company’s culture and environment to ensure that the workplace is professional and free of problematic conduct and language;
• conduct training on sexual harassment for both managers and employees;
• select the appropriate contact person, or persons, for employees who want to report harassment. The contact should be someone who employees can trust to take the concern seriously;
• have trained individuals to conduct prompt and thorough investigations of any alleged harassment;
• if the conduct is substantiated, take proper remedial action against the alleged harasser;
• remind all involved (i.e., the employee who reported the concerns, the alleged harasser, and any supervisor involved) that retaliation is expressly prohibited.
Also, employers should ensure that the corresponding policies and procedures:
• are clearly documented;
• are explained to all employees;
• offer both informal and formal options;
• address complaints in a manner which is fair, timely and confidential;
• are administered by trained personnel;
• provide clear guidance on internal investigation procedures and record keeping;
• give an undertaking that no employee will be victimised or disadvantaged for making a complaint;
• are regularly reviewed for effectiveness.
Notwithstanding the availability of any possible legal action, the penalties contemplated by local laws may not be an appropriate remedy for the damage caused to the victim or a true sanction for the illegal action committed by the harasser. Sexual harassment is a serious matter that no-one should ever have to encounter. As time progresses, the law will hopefully continue to be a key deterrent.