A “zero tolerance” stand on illegal harassment may be appropriate for US domestic employment operations. But different laws and standards abroad complicate any global approach to eradicating workplace harassment.
Over the past few decades, workplace harassment jurisprudence in the US has evolved into what is surely the most intricate body of harassment law in the world. Harassment cases in America now construe concepts as esoteric as, for example: a “tangible employment action” requirement for vicarious liability in quid pro quo harassment; an affirmative defense of unreasonable failure to take advantage of “preventive or corrective opportunities”; a “severe and pervasive” requirement for hostile environment harassment; and claims of so-called “implicit” quid pro quo third-party harassment.
These rarified doctrines evolved in court decisions despite the fact that the texts of US statutes tend not to prohibit workplace harassment at all, at least not explicitly: The federal harassment prohibition is a judge-made extension of statutes that nominally prohibit only discrimination. As a result, workplace harassment in the US tends to be actionable only to the extent that it is a form of discrimination. Nondiscriminatory harassment, or bullying, tends not to be illegal.
In recent years, awareness of workplace harassment has spread abroad. Indeed, common-law countries, in particular, now impose anti-harassment rules reminiscent of the US approach. As anti-harassment doctrines take root overseas, they mutate into different forms. As they grow, they can become even broader (if less nuanced) than counterpart US doctrines. To that extent, state-of-the-art American tools for weeding out the US variety of workplace harassment do not always work well overseas. Fostering a harassment-free workplace internationally requires subtlety, strategy and finesse—not bluntly imposing an American “zero tolerance” approach. Any US multinational pursuing a multijurisdictional approach to eradicating illegal workplace harassment needs to account for the international context in a number of specific respects: alignment, protected status, affirmative mandates, policy drafting, launch logistics, communications/training and investigations. We address each.
- Alignment. Any global approach to eradicating workplace harassment should align with the multinational’s own approach to eradicating workplace discrimination and promoting equal employment opportunity. (See our Global HR Hot Topic for Dec. 2010.)
- Protected status. Because US rules against workplace harassment grow out of statutes that prohibit workplace discrimination, American harassment policies tend to ban only status-based harassment linked to membership in a protected group (like sex harassment, race harassment, disability harassment). Few US employers impose tough, enforceable prohibitions against status-blind harassment (bullying, pestering, so-called “equal opportunity harassment”). A trend may be emerging at the American state level to combat so-called “abusive work environments,” but current American laws and policies against workplace harassment still yoke harassment to protected status. Overseas, though, prohibitions against harassment can be broad status-blind doctrines against “bullying,” “psycho-social harassment,” “mobbing,” or simply abusive behavior generally, without regard to protected group. A Belgian law of June 2002 prohibits workplace “pestering,” a French law of June 2010 criminalizes “psychological violence,” and an emerging doctrine in Brazil imposes damages for “moral” harassment. In theory, these status-blind harassment laws are infinitely broader than status-based harassment prohibitions because they ban all abusive behavior, while status-based laws merely prohibit those acts of harassment motivated by a handful of specific factors. Accounting for status-blind harassment laws requires significantly broadening any workplace harassment policy or training module. Failing to address this leaves a huge hole in an international harassment initiative.
- Affirmative mandates. Every workplace harassment law imposes a negative prohibition against committing illegal harassment. In addition, some jurisdictions’ laws go farther and impose affirmative employer duties as to harassment compliance. For example, a number of countries (including Chile, Costa Rica, India and Japan) affirmatively require employers to issue written sex harassment policies. South Korea and California require employers to offer periodic training on sex harassment. Costa Rica requires employers to institute sex harassment claim procedures and to report each claim to the Ministry of Labor Inspection Department. Any multijurisdictional harassment initiative needs to account for locally imposed affirmative employer duties with respect to harassment.
- Policy drafting. In drafting a harassment policy (or code of conduct provision) to apply across multiple jurisdictions, be sure all provisions work locally. Specifically:
- Define key terms cross-culturally. Concepts connected to harassment are particularly susceptible to being misunderstood internationally. For example, the terms “inappropriate behavior” and “improper touching” get interpreted very differently depending on cultural context. Even the term “harassment” itself can take on very different meanings; in Brazil, “harassment” (assédio, in Portuguese) is understood to mean only overt and abusive acts, and therefore does not reach “hostile environment” harassment.
- Be sure a policy’s explicit prohibitions are enforceable in each affected jurisdiction. Many harassment policies expressly prohibit on-job “kissing”—a rule unworkable in places like France, where men and women co-workers greet one another each morning with a kiss. Restrictions on co-worker dating can raise serious privacy law and human resources challenges overseas. Even rules that merely require dating co-workers to disclose relationships can be offensive, and virtually unenforceable, in jurisdictions like France and Switzerland.
- Launch logistics. Be sure to launch a cross-border harassment policy in compliance with applicable procedures for implementing new work rules. Every harassment policy imposes a discipline or termination sanction; to that extent, the policy is a work rule which may be subject to mandatory “information and consultation” with works councils or a mandatory subject of bargaining with unions. (See our Global HR Hot Topic for Mar. 2007.) Any policy provision that imposes a mandatory disclosure rule—such as requiring dating co-workers to disclose their relationship—can trigger employment and data privacy law problems. In Europe, hotline-type reporting provisions in a harassment policy trigger data privacy laws. (See our Global HR Hot Topics for Nov. – Dec. 2007.)
- Communications/training. After implementing a global harassment policy, a multinational should communicate it to employees and train them on how it works. This step raises unique cultural challenges in places where sex harassment, in particular, remains poorly understood. Foreign workers, men and women alike, have responded derisively to US-generated sex harassment and gender-sensitivity training, although in recent years workers in many countries have grown more sensitive in this regard. Still, there remain pockets in the Arab world, Africa, Asia and Latin America where American-style sex harassment training modules may seem inappropriate. Audiences in these places may scoff at training they find too politically correct, too puritanical or too insensitive to their local culture. Therefore, tailor communications and training (be they live or online) for the local audience. Tone down features not likely to play well locally. Explain why harassment is a local problem and how harassment initiatives can work locally.
- Investigations. US employers understand the importance of thoroughly investigating credible harassment allegations received through a policy’s reporting channels. Indeed, laws in a number of countries (including Chile, Costa Rica, India, Japan, South Africa and Venezuela) affirmatively require employers to investigate specific allegations of sex harassment. Even so, aggressive American-style workplace investigatory practices trigger a number of unexpected legal issues. Be sure harassment investigations comply. (See our Global HR Hot Topics for Oct. – Dec. 2009.)
Best Practices Tip:
Never export a US-conceived harassment policy or training module internationally without adapting it to the very different standards and expectations abroad.