The #MeToo movement has changed the cultural landscape and increased the need for employer focus on preventing sexual harassment in the workplace
The definition and legal requirements surrounding sexual harassment vary across the world. Employers operating in different jurisdictions need to take note of these differences when implementing cross-border initiatives to ensure compliance with the law and consider steps to create a workplace free from harassment.
In a Ius Laboris survey covering nearly 50 countries, we discovered that sexual harassment has a different meaning depending on the country in question. Case law shows that cultural differences sometimes lead to different interpretations of the same legal standard. For example, it is more likely to be acceptable for a manager or colleague to make a comment about a person’s looks or outfit in Italy than in the UK. Our survey showed that in some countries, the behaviour of the harasser does not have to be of a sexual nature for it to be sexual harassment. It simply has to have a sexual connotation and be unwanted.
In a Bulgarian case, even though a male manager did not directly state his intentions to a female employee, it was clear that he took a personal interest in the employee and wanted a closer relationship. The employee found his behaviour offensive, disturbing and humiliating and the court agreed.
The French courts found a male manager’s texts to two female employees to be sexual harassment. One of the texts said: “I wish you a sweet day with lots of kisses on your velvet lips”.
In a Spanish case, a manager asked an employee if he could take a picture of her, asked her to remove her jacket and made comments about her hips and breasts as he took the picture. This was found unlawful.
Taking a lead
Employers that take a lead on this focus on three key areas:
• preventing sexual harassment;
• supporting employees in reporting incidents;
• investigating allegations.
In some countries, it is a legal requirement for employers to provide specific measures to prevent sexual harassment. Whether it’s a legal requirement or not, most employers today realise they need to take active steps to create a workplace free from harassment.
In our survey, we found that in a number of countries, it is a legal requirement for employers to implement a sexual harassment policy. This is the case in Belgium, Chile, Colombia, Croatia, Cyprus, France, Germany, Greece, India, Ireland, Israel, Japan, Luxembourg, The Netherlands, Panama, Peru, Portugal, Romania, Spain, Sweden and Venezuela. In some, this applies to all employers and in others only to employers with more than a given number of employees. However, in most jurisdictions, having a policy is considered essential as part of the employer’s duty of care.
Employers should consider whether their policy:
• does enough to prevent sexual harassment;
• encourages employees to report incidents.
It is important to tailor your policy to the needs of the business as well as local law.
Dealing with allegations of sexual harassment
If an employer finds out that an employee may be being sexually harassed by a manager, colleague or business partner, it must take immediate action or face possible liability. But would your organisation be ready to act? It is generally recommended that employers have procedures for dealing with allegations of sexual harassment and the management should commit to adhering to them, even if complaints are made against senior managers.
It is already a legal requirement to have procedures in place in Belgium, Croatia, France, Germany, Ireland, Norway, Sweden, Canada (in some provinces), US (in some states), Chile, Colombia, Panama, Peru, China, India, Japan, South Korea and Israel. In most other places, it is considered best practice.
It can also be important to face issues head on, as neatly illustrated in a case before the Israeli Regional Labour Court. An employee who was alleged to have harassed another employee, complained to the employer for not investigating the rumours that were circulating about the alleged harassment. No complaint of harassment had been made by the alleged victim and the employer felt it did not want to give the rumours credence by looking into them. But by ignoring the rumours, the employer not only suffered reputational damage, but the court found it liable for burying its head in the sand and failing to investigate.
In a few countries, it is a legal requirement for employers to conduct regular sexual harassment prevention training. This is the case in Belgium, Canada (in certain provinces) and the US (in some states), Peru, India and South Korea. In a number of other countries, it is not a legal requirement, but is considered best practice.
Training programmes must be tailored to ensure that they genuinely support a working environment free of sexual harassment and that they comply with local law. They can be organised as:
• workshops with interactive case studies;
• classroom presentations;
• ‘speak-up’ seminars (encouraging employees to speak up if they have experienced sexual harassment).
In a number of countries, the #MeToo movement has led to a debate on the enforceability of non-disclosure agreements and arbitration clauses in sexual harassment cases. This has led to changes in some states in the US, where law has been enacted to make non-disclosure agreements unenforceable, even if formally agreed in the settlement agreement. This is certainly an area to watch.
Risk of claims
The number of sexual harassment claims varies from country to country, however, because of the increased focus on employers’ obligations in this area, employers in all countries need to be aware of the risk – the legal and cultural landscape can change very quickly.
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