International Workplace Sexual Harassment Laws and Developments for the Multinational Employer

Ellen Pinkos Cobb

• Éditeur: Routledge
• Année: 2019
• ISBN:
  9780429513633
• Édition: 1
• Sujet: Law
• Sous-sujet: Financial Law

As the #MeToo movement has become an increasingly global and significant workplace matter, a timely resource compiling must-know international workplace sexual harassment laws for the multinational employer is clearly needed.

This book provides a comprehensive compilation of global sexual harassment laws, clearly necessary in this climate but not currently existing until now. It presents legislation addressing workplace sexual harassment in over 50 countries in the European Region, Asia Pacific, Americas, and the Middle East and Africa. Within each region, the laws of individual countries are set forth, as well as some cultural context and recent developments to indicate present and future trends in workplace sexual harassment regulation.

Written in clear, plain English for anyone without a legal background to understand, this book is essential reading and a key resource for employment and business attorneys, global employers, managers, human resources professionals, and occupational health and safety professionals. Academics, practitioners, union members, employees, NGOs, and those in the human rights field will also benefit from this timely resource.

1 Workplace sexual harassment

The big picture, the role of culture, and the global view

Sexual harassment basics

• • Sexual harassment is frequently defined as involving unwanted sex-related behavior. While no universal definition exists, most legal understandings include similar elements, such as descriptions of the conduct as unwanted or unwelcome, with the purpose or effect of being intimidating, hostile, degrading, humiliating, or offensive (Source: 14 International Journal of Management Reviews 1, 2, 2011. “Workplace sexual harassment 30 years on: a review of the literature,” by Paula McDonald; 31 Nova Law Review 225, 226–227, 2007. “Directions in sexual harassment law,” by Catharine MacKinnon).
• • Sexual harassment is sex discrimination: many countries regard sexual harassment as sex discrimination, as is shown in this book’s country-by-country legislation. Sexual harassment is not gender-specific, but a large majority of its victims are women.
• • Types of sexual harassment: the two types of sexual harassment are known as “quid pro quo” and “hostile working environment.”
• Sexual harassment is a form of sexual violence that commonly occurs in the world of work, and it is frequently categorized in two ways: “quid pro quo” or “hostile working environment.” Quid pro quo sexual harassment is when a worker is asked for a sexual favour, and submitting to or rejecting that request is used to make a decision about that worker’s job. Hostile working environment harassment covers conduct that creates an intimidating, hostile, or humiliating working environment (Source: International Labour Organization, International Labour Conference, 2018. “Ending violence and harassment against women and men in the world of work”).

Quid pro quo means “this for that.” Quid pro quo harassment occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,” and when expressed or implied demands for sexual favors are implied or offered by someone in a position of power over another in exchange for some benefit (e.g., a promotion), or to avoid some detriment (e.g., termination), in the workplace. Unwelcome sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment” (Source: US Government Publishing Office. Code of Federal Regulations. 29 C.F.R § 1604.11(a)(1), (2), and (3)).

Hostile working environment harassment occurs when speech or conduct is so severe and pervasive that it creates an intimidating or demeaning environment or situation that negatively affects a person’s job performance. The harassing conduct may be perpetrated by anyone in the work environment, including a coworker, supervisor, customer, or contractor.

According to the International Labour Organization, the most common way to define sexual harassment is to include both the quid pro quo and the hostile working environment categories.

Types of workplace laws which include sexual harassment provisions

Around the world, laws addressing sexual harassment are included in anti-discrimination, equality, and equal opportunity laws; criminal codes; labor codes; health and safety legislation; and laws on psychosocial risks. In some countries, definitions of sexual harassment include gender-based harassment, or harassment based on gender identity. Some laws address psychosocial risks and regulate sexual harassment as a psychosocial risk. (Workplace factors that cause stress are referred to as psychosocial risks or hazards. Sexual harassment is one of the working conditions leading to psychological risk.)

Impact of workplace sexual harassment

Sexual harassment significantly affects organizations, with consequences which include increased employee use of sick leave, higher turnover, training and development costs, possible litigation, and harm to reputation. For a sexually harassed employee, there may be reduced job satisfaction, commitment, and productivity, as well as the possibilities of anxiety, depression, anxiety, and other physical and psychological health issues.

Workplace sexual harassment recognition and prevention by international organizations

A global movement and response of global bodies

The United Nations and regional treaty systems have recognized sexual harassment as a form of discrimination and violence against women.

International statements of law and principle provide an important starting point in drafting legislation that prohibits sexual harassment.

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), adopted by the UN General Assembly in 1979, directs States Parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law and in governance and politics, the workplace, education, healthcare, and other areas of public and social life (Arts. 7–16). It entered into force as an international treaty on September 3, 1981 after the twentieth country had ratified it. By the tenth anniversary of the Convention in 1989, almost one hundred nations had agreed to be bound by its provisions. The implementation of the Convention is monitored by the Committee on the Elimination of Discrimination Against Women (CEDAW).

Additionally, in 1993, the UN General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defined violence against women as including sexual harassment, which is prohibited at work, and encouraged development of penal, civil or other administrative sanctions, as well as preventative approaches, to eliminate violence against women (Art. 4(d–f)).

International Labou r Organization (ILO): the ILO is a tripartite UN agency which brings together governments, employers, and workers of 187 Member States to set labor standards, develop policies, and devise programs promoting decent work for all women and men.

The ILO defines sexual harassment as follows:

[Sexual harassment is] a sex-based behaviour that is unwelcome and offensive to its recipient. For sexual harassment to exist these two conditions must be present.

Sexual harassment may take two forms:

1. 1) Quid Pro Quo, when a job benefit—such as a pay rise, a promotion, or even continued employment—is made conditional on the victim acceding to demands to engage in some form of sexual behaviour; or;
2. 2) Hostile working environment in which the conduct creates conditions that are intimidating or humiliating for the victim.

Behaviour that qualifies as sexual harassment:

• PHYSICAL: Physical violence, touching, unnecessary close proximity
• VERBAL: Comments and questions about appearance, lifestyle, sexual orientation, offensive phone calls
• NON-VERBAL: Whistling, sexually-suggestive gestures, display of sexual materials

2019 ILO Convention and Recommendation to Combat Violence and Harassment in the Workplace

On June 21, 2019, the ILO adopted a new Convention and Recommendation to Combat Violence and Harassment in the Workplace at the International Labour Conference (ILC) annual meeting. (Conventions are legally binding international treaties that may be ratified by member States, while Recommendations provide advice and guidance.) Before adoption of the Convention, there had been no international legal standard that addressed violence and harassment in the workplace and provided a definition and scope for it. Article 1 of the Convention states the following:

For the purposes of this Convention:

1. (a) The term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;
2. (b) The term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.

The Convention recognizes that violence and harassment in the world of work “can constitute a human rights violation or abuse…is a threat to equal opportunities, is unacceptable and incompatible with decent work.”

The new international labour standard aims to protect workers and employees, irrespective of their contractual status, and includes persons in training, interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants. It recognizes that “individuals exercising the authority, duties or responsibilities of an employer” can also be subjected to violence and harassment.

The standard covers violence and harassment occurring in the workplace; in places where a worker is paid, takes a rest or meal break, or uses sanitary, washing or changing facilities; during work-related trips, travel, training, events or social activities; in work-related communications (including through information and communication technologies); in employer-provided accommodation; and when commuting to and from work. It also recognizes that violence and harassment may involve third parties.

Workplace sexual harassment in a cultural context

Cultural differences in ...