Harassment in Employment

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women’s Virtual Knowledge Centre to End Violence against Women and Girls.  This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

 

Overview

Laws prohibiting sexual harassment emerged in the context of the discrimination and outright violence that women experience in the workplace. Workplace sexual harassment law is by far the most developed and most commonplace around the world. In the United States, where sexual harassment laws and judicial decisions were first developed in the 1970s, courts recognized that women experienced harassment in two common forms. First, quid pro quo harassment, where the victim’s refusal or acceptance of behavior influences decisions concerning her employment or conditions of employment, e. g. a manager tells his assistant, “Perform a sexual favor for me and you will [/or you will not] get promoted.” Second, hostile work environment claims, in which the harasser’s or harassers’ behavior creates an intimidating, hostile, degrading, humiliating, or offensive environment, e.g., male employees make daily comments over a period of time about the sexual life and body of their female co-worker. (See: Williams v. Saxbe, 413 F. Supp 654 (Ct. App. D.C. 1976)).

Establishing Enforcement Agencies and Special Tribunals

Laws on sexual harassment should designate a specialized entity that is responsible for enforcement of sexual harassment prohibitions. Often these bodies are national human rights or anti-discrimination commissions with oversight of a number of areas.

Example: The Caribbean Community has drafted a model law on sexual harassment that provides for the establishment of a permanent specialized tribunal to hear sexual harassment claims, or in the alternative, for an ad hoc tribunal to be appointed to hear specific claims. (See: Model Law on Sexual Harassment, sec.6) It is critical that in the establishment of specialized enforcement units, commissions, or tribunals, those appointed to serve are experienced in handling workplace harassment cases and that at least 50% of the investigators/members are female.

Special Procedures for Workplace Sexual Harassment Cases

Drafters should include provisions that reduce the burden on victims of sexual harassment as much as possible in bringing claims. For example, including a provision for victims to request that a female investigator work on their case can make victims more comfortable discussing their claim. Allowing for class action suits, where a small group of named individuals bring a claim on behalf of a group that is similarly situated, may also provide some anonymity for victims who would otherwise be unwilling to bring claims. For example, South African law specifically provides for class action, in para. 20(1)(c) of its Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. Several other countries, including Australia, Israel, and Sweden allow trade unions and other employee organizations to bring claims on behalf of their members.

Employment Qualification & Licensing

Laws should also ensure that sexual harassment in the context of professional licensing or qualification is prohibited. This may be covered in laws regarding the provision of goods and services or in laws related to employment-based harassment. The United Kingdom’s new Equality Law, for example, specifically addresses harassment in the context of entities that can “confer relevant qualifications.” (See: Equality Law, secs. 91-92) Mauritius’ law also prohibits sexual harassment “in relation to the conferment, renewal, extension, revocation or withdrawal of an authorisation or qualification” required for professional or trade work. (See: Equal Opportunities Act (2008), Art. 26(5)).

Involvement of Unions and Other Employee Groups

Laws should provide for the involvement of employees and their representatives in the process of creating policies related to sexual harassment. Laws in the Philippines and Sweden require this type of involvement, for example. Laws may also require that unions are notified when issues of sexual harassment arise, that unions are given the opportunity to arbitrate or otherwise support the employee, or that unions provide training to employees about relevant labor laws including sexual harassment.

Examples:

In the Philippines, employers must:

Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefore.

See: Republic Act No. 7877, sec.4(a).

In Sweden, anti-discrimination legislation that came into effect in 2009 mandates that:

Employers and employees are to cooperate on active measures to bring about equal rights and opportunities in working life regardless of sex, ethnicity, religion or other belief, and in particular to combat discrimination in working life on such grounds.

See: Discrimination Act, Ch. 3, sec.1.

In Greece, unions are required under law to train their employees on sexual harassment by providing information about the content of the law as well as the consequences for committing a violation. See: Sexual Harassment Prevention, Ius Laboris, 2012.

Provisions of the Federal Labor Law in Mexico require that all internal workplace policies, including sexual harassment policies, are developed in consultation and with consent of employees representatives on relevant committees. See: Sexual Harassment Prevention, Ius Laboris, 2012.

Tool:

Gender equality: A guide to collective bargaining (ILO, 2002) – Among the six modules in this tool, sexual harassment is examined including strategies to address it during collective bargaining. The tool is a starting point for negotiations, awareness raising and interaction between employers and workers in order to overcome sex discrimination and obtain equal opportunities in the workplace.

Vulnerable Populations in the Workforce

Some populations of employees are particularly vulnerable to harassment. These include young workers, such as adolescents who may be less experienced in the workforce, migrant workers and indigenous peoples, who may face language and cultural barriers in understanding their rights to be free from harassment, or workers in certain professions such as agriculture, domestic work and the health sector. Watch a video about sexual harassment and violence against farmworkers in the United States (Produced by Human Rights Watch, 2012.) Sexual harassment laws should contain provisions to reach out to these vulnerable groups and ensure that they are aware of their rights.

A US legal case that was settled in 2012 highlights the duties of employers to address the needs of younger workers as well as migrants. The US government Equal Employment Opportunity Commission sued a vineyard for violation of US law related to sexual harassment. A 17-year old girl from an indigenous community in Mexico was harassed by a fellow employee. When she and others who had witnessed the harassment complained to the company, they were summarily fired. The company’s actions were a clear violation of US Title VII, which prohibit employers from retaliating against employees who report harassment. The company settled the case and agreed to expend $350,000 to address the issues raised by the suit, including (1) training its entire 3000-person workforce on harassment, (2) revamping and updating its harassment and complaint procedures, (3) providing policy-information to employees in a language that the understand, (4) to develop a centralized tracking system for complaints, and (5) to hire an employee dedicated to receiving and addressing harassment complaints. See: Giumarra Vineyards Agrees to Sweeping Changes to Settle EEOC Suit Filed on Behalf of Indigenous Farmworkers, EEOC Press Release, July 2, 2012.

Domestic workers, farmworkers, and some other vulnerable groups often are excluded from the coverage of national labor laws and thus may not benefit from the same protections from sexual harassment when they are included in labor laws. This is beginning to change however. For example, the 2012 Labor Code in Viet Nam explicitly covers domestic workers and prohibits sexual and other forms of harassment. The US State of New York in 2010 passed the first of its kind Domestic Workers Bill of Rights. Amongst other labor standards, the Bill of Rights creates a special cause of action for domestic workers who are sexually harassed.

Tools:

Young People in the Workplace is an educational tool to help Australian students gain a better understanding of workplace harassment issues. Available in English.

Youth @ Work is an educational website for young people in the workforce in the United States focused on raising awareness about sexual harassment and discrimination. It includes case studies of young people reporting harassment and claiming their rights. Available in English and Spanish.

When Teenage Girls Have Been Sexually Abused: A guide for teenage girls is designed to help Canadian teens understand the definitions of sexual abuse and harassment, the relevant laws, and the support services available. Available in English.

The US-based National Domestic Workers Alliance has created a fact-sheet on legal Employment Protections for Domestic Workers.

Fact sheets on the New York state Domestic Workers Bill of Rights, in English, Spanish, French, Haitian Creole, Hindi, Nepali, Chinese, and Tagalog. NY state sample forms in multiple languages are available here.

No Free Pass to Harass: Protecting the Rights of Undocumented Immigrant Women Workers in Sexual Harassment Cases is a litigation guide for designed for attorneys representing migrant women in the United States (ACLU/NELP). Available in English.

CASE STUDY – Sexual Harassment in Export Processing Zones

Export processing zones (EPZs) are special industrial centers that are set up in many developing nations. China accounts for a majority of the EPZs in the world, with the rest scattered in Central America, the Caribbean, sub-Saharan Africa, and Southeast Asia. EPZs are governed by special rules designed to attract foreign investment. Often these special rules circumvent national labor laws and prohibit trade unions from participating in negotiation and oversight. The vast majority of workers in EPZs are women, because they are often lower skilled and can be paid less so as to maximize profits. In Honduras and Jamaica, for example, 90% of EPZ workers are female. (See: Rosselson, Ruth, What are export processing zones?) Sexual exploitation of women and girl workers has been documented in EPZs around the world. In Kenya’s EPZs, for example sexual exploitation has been extensively documented, often in the form of sex-for-jobs arrangements. In a survey of female EPZ workers in Kenya, 90% reported that they had experienced some form of sexual harassment. This often comes at the hands of mid-level supervisors who are in charge of hiring workers, but there are also systematic abuses against women. (See: Kenya: Sex for jobs in export processing zones, IRIN News, Nov. 24, 2008)

Discrimination against women workers who become pregnant is also a common practice in EPZs. One example is in Mexico, where employers at EPZs require female workers to take pregnancy tests. Many pregnant workers are dismissed outright, while others are given leave but never allowed to return to work. (See: Export Processing Zones – Symbols of Exploitation and a Development Dead-End, International Confederation of Free Trade Unions (ICFTU, 2003) Union involvement is often prohibited in EPZs but in the Philippines, unionization at the Mitsumi corporation’s EPZ factory made a significant difference for women workers. Not only are working conditions in the plant reportedly better than at other EPZ companies, but when there was a case of sexual harassment at the factory, the union went to management and asked that the manager be punished. According to a union leader, the company took the union’s advice and incidents of sexual harassment have been largely unknown since the company’s action. (See: Spotlight interview with Josephine de Jesus (2005))