Changes to Peru’s sexual harassment law have set out a new definition of sexual harassment and defined a grievance procedure for victims of workplace sexual harassment.
Authors: José Antonio Valdez, Lucianna Polar
Firm: Estudio Olaechea
On 12 September 2018, Peru’s new Decree revising its sexual harassment law was published in the Official Gazette, El Peruano (Legislative Decree No. 1410 ‘Legislative Decree incorporating the offence of sexual harassment, sexual blackmail and dissemination of audiovisual or audio material with sexual content into the Criminal Code and modifying the procedure for punishing sexual harassment’).
The Decree amends Law No. 27942 on the Prevention and Punishment of Sexual Harassment as follows.
1. Definition of sexual harassment
The former Article 5 of the Law on the constituent elements of sexual harassment has been deleted and sexual harassment and ‘environmental sexual harassment’ are now defined as follows:
‘Sexual harassment is a form of violence enacted through behaviour, repeated or otherwise, of a sexual nature or with sexist connotations that is unwanted by the person against whom it is directed, which can create a hostile or humiliating environment, or affect their activity, work, or any teaching or training situation.’
2. Wider ‘catch-all’ provision added to behaviours that constitute sexual harassment
The following subsection has been added to the list of behaviour and conduct that constitutes sexual harassment:
‘f) Other behaviours that fit within the concept of sexual harassment’
3. Consequences of workplace sexual harassment
The Decree indicates that the consequences of sexual harassment in an employment context will be as follows:
3.1 The victim may choose between making a formal written request for the harassment to stop or demanding payment as compensation for the harassment.
3.2 If the employee makes a formal request for the harassment to stop, the employer has six days to respond to this request (regardless of the alleged harasser’s position or seniority). If the employer fails to investigate a claim of sexual harassment or to adopt the appropriate protective, prevention and sanction measures, the employee can either sue the employer to compel them to deal with the harassment, or consider themselves to have been constructively dismissed, and sue for compensation.
3.3 In addition and regardless of which option the victim chooses to pursue, the victim has the right to sue for damages suffered as a result of an act of sexual harassment.
3.4 The dismissal of an employee or the non-renewal of a fixed-term work contract for reasons related to the filing of a complaint or claim of sexual harassment at work or because an employee is acting as a witness in favour of a victim of sexual harassment will be invalid and unenforceable.
4. Sexual harassment outside the employment relationship
If sexual harassment takes place in the context of a relationship not regulated by labour law, the victim has the right to compensation for the damage suffered. This is processed in civil court summary proceedings. This does not apply to victims who are in training, who must file their claim before the Labour Judge in accordance with Law N° 29497 (the New Labour Procedural Law).
The employer of the person accused of harassment, in whose workplace the act of harassment has taken place, must adopt appropriate sanction measures. Depending on the seriousness of the facts, these can include a reprimand, suspension or dismissal.