The establishment of Law No. 7476 of February 3, 1995, Law against Harassment or Sexual Harassment in Employment and Teaching and its Reforms, of April 2010 and April 2021; the constitutional principles of respect for freedom and human life, as well as the right to work and the principle of equality before the law, brought companies the obligation to ensure an environment free of sexual harassment in the workplace. The preceding also implies that the employer is making and fulfilling very specific legal commitments.
For the International Labor Organization and the United Nations Convention on the Elimination of all Forms of Discrimination against Women, sexual harassment is identified as "a manifestation of gender discrimination and as a specific form of violence against women. Sexual harassment is a violation of the fundamental rights of workers, it constitutes a health and safety problem at work and an unacceptable employment situation".
Likewise, it is relevant to indicate that sexual harassment produces damages not only for the victims but also for the companies themselves since they must bear the costs of work disabilities, increased work accidents, expenses in legal proceedings, and the impact on the working environment, reputation, and low productivity, among others.
The reforms made to the law in 2010 and the reform of 2021 introduced a series of prevention obligations. Among the main ones, the following stand out:
- Every employer will have the responsibility to maintain, in the workplace, conditions of respect for those who work there through an internal policy that prevents, discourages, avoids, and punishes sexual harassment behaviors (Article 5, Law No. 8805). However, for the policy to be effective, the employer must socialize it with its workers and create mechanisms for them to read and understand it. In addition, he must provide a space so that the employees can study the policy and raise their concerns or doubts so that the employer can satisfactorily address them.
The content of the policy is expressly stated in the law, as follows:
- Communicate, in written and oral form, to supervisors, representatives, civil servants, and workers in general about the existence of an institutional or business policy against sexual harassment. Likewise, they will make known said prevention policy to third parties when it is convenient to fulfill the purposes established in this law (article 5.1, Law No. 8805). It should be noted that companies must also share their policy with third parties, such as suppliers, customers, users, or others with whom the company is related so that they understand the employer's commitment to have a workplace free of sexual harassment and so that the parties external to the organization can refrain from engaging in this kind of conduct towards their workers—Outsourcing companies. If the entity has contracted services with outsourcing companies, these obligations must be fulfilled by the staff of the supplier company, for which the user or beneficiary company of the service must establish said obligations in the framework contract entered into with the service provider company.
- Establish the internal, adequate, and effective procedure that allows the processing and investigation of complaints of sexual harassment, guaranteeing the confidentiality of the complaints and the sanctioning regime for the harassers when there is a cause (Article 5.2, Law No. 8805). In addition, the procedure must have all the guarantees of due process and the right to defense. Although it is the company's power to indicate the deadlines, it must ensure that the duration of the process complies with the mandatory period of three months, counted from the filing of the complaint concerning sexual harassment.
- Maintain personnel with experience in the prevention of sexual harassment (Article 5.3, Law No. 8805). The people who make up the investigating committee of the company must have adequate knowledge of the matter. Therefore, the organization should provide them with sufficient initial training and seek that their knowledge is up to date.
- Maintain an updated record of the sanctions imposed in the workplace or institution for the conduct of sexual harassment. This registry may be consulted by any interested person, safeguarding the identity, personal data, and any other sensitive information of the victims. The information will be kept in the registry for a period of ten years from the firmness of the respective sanction. Minors are exempted from the application of this subsection (Article 5.4, Law No. 8805). This obligation arises from the recently sanctioned law No. 9969, of April 13, 2021, to guarantee the publicity of the firm sanctions imposed for sexual harassment behaviors. Said registry of the sanctions imposed in the workplace is public; however, it will also ensure the protection of the personal data of the victims, under Law No. 8968 of July 6, 2011, Law of Protection of the person against to the processing of your personal data.
Other obligations established by law
- The responsibility to disseminate the law. Every employer must disclose the content of the Law on sexual harassment and its reforms to all their workers (Article 6, Law No. 7476).
- Inform the Ministry of Labor and Social Security. When a case of sexual harassment occurs, the employer must inform the National Directorate and Labor Inspection of the Ministry of Labor and Social Security so that they can have access to the procedure and protect the rights of the parties, exercise their competencies, and ensure compliance with the provisions of the Law. This communication should not be omitted as it could lead to a fine for the infringement of labor laws (Article 7, Law No. 7476).
- Guarantee for the complainant and witnesses. No person who has denounced being a victim of sexual harassment or has appeared as a witness for the parties may suffer any personal harm in her employment. Furthermore, the employer must guarantee zero retaliation for the complainant or those who have acted as witnesses for any parties (Article 14, Law No. 7476).
- Grounds for dismissal of the complainant. Anyone who has made a complaint of sexual harassment may only be fired for justified cause, originating from a severe breach of the duties derived from the employment contract, following the grounds established in article 81 of the Labor Code. If one of these causes occurs, the higher authority or the competent instance will process the dismissal before the National Directorate and General Labor Inspectorate, demonstrating the existence of just cause for the dismissal. The employer must respect the jurisdiction of the person reporting a case of sexual harassment in the workplace (Article 15, Law No. 7476) while the investigation process has not concluded. Subsequently, the termination that has its origin for this same reason will be considered discriminatory.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
See: https://www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/---sro-san_jose/documents/publication/wcms_227404.pdf
About the Autor