By Pablo Buracco, Firm: Funes de Rioja & Asociados
José Carlos Wahle, Firm: Veirano Advogados
Tara Erskine, Firm: mathewsdinsdale
Marcela Salazar, Firm: Munita & Olavarria
Catalina Santos, Daniela Caicedo Callejas, Firm: Brigard & Urrutia
José Miguel Navarrete, Firm: Arosemena Noriega & Contreras
Ana Sofia Apaza, Firm: ESTUDIO OLAECHEA
Jeffrey Douglas, Firm: fordharrison
Biba Arciniegas, Firm: D'Empaire Abogados
This article originally published on the Society for Human Resource Management’s website on 19 September 12019 stresses the diversity in the definitions of ‘sexual harassment’ across nine different countries in the American continent.
The definition of ‘sexual harassment’ varies across North and South America. Employers operating in different jurisdictions should note these differences to ensure cross-border compliance and create a workplace free from harassment. Case law shows that cultural differences sometimes also lead to different interpretations of the same or similar legal standards.
Argentina has adopted the International Labor Organization's definition of sexual harassment: ‘a behavior based on sex, of an unpleasant and offensive character for the person who suffers it.’
Sexual harassment in the Brazilian workplace occurs when someone in a superior position causes embarrassment to a subordinate for the purpose of obtaining an advantage or sexual favor. Some labor justice commentators maintain that sexual harassment may happen within the same hierarchical level if the victim is led to believe that the offender has professional influence over her or him, can embarrass the person in front of that employee's co-workers, or can cause extreme disturbance to the professional relationship.
Definitions of sexual harassment vary by Canadian province. The Supreme Court of Canada defines sexual harassment in the workplace as ‘unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job- related consequences for the victims of the harassment.’
Sexual harassment in Chile is conduct incompatible with the dignity of a person, such as when someone unduly and by any means makes requirements of a sexual character to which the recipient does not consent and those requirements threaten or damage the work situation or job opportunities of the victim.
There is no legal definition of sexual harassment in Colombia. However, ‘labor harassment’ has been considered to include sexual harassment. Labor harassment is any persistent conduct aimed at intimidating, frightening, distressing or causing harm at work to an employee.
Sexual or moral harassment in Panama involves systematic, continuous or repeated events, actions or omissions in which a person suggests, invites, pursues, limits or restricts the rights or liberty of another; behaves rudely toward the other or insults or humiliates the individual with the purpose of obtaining sexual gratification; or inflicts indignities.
In the work environment, this includes failure to afford the victim the same employment opportunities as others, failure to apply the same selection criteria and failure to respect the working conditions of the victim. It also includes unjustly discrediting the job performed by the victim.
Sexual harassment in Peru occurs when there is conduct or behavior of a sexual or sexist nature that is unwanted by the person to whom it is directed. It may create an intimidating, hostile or humiliating environment or may affect the victim's employment or training.
Under U.S. federal law, there are two broad types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment applies when a supervisor seeks sexual favors in return for a job benefit and there is an employment consequence for the refusal to submit to the harasser's demands. Hostile work environment means unwelcome behavior based on sex that is either severe or pervasive.
Some state and local jurisdictions have expanded the scope of what constitutes sexual harassment to include harassment based on sexual orientation and gender identity or expression.
Sexual harassment in Venezuela includes unwanted and unsolicited behavior of a sexual nature, either as an isolated event or a series of events, by the employer or by its representatives toward the employee, with the purpose of affecting her or his labor stability.