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Definition of sexual harassment in the workplace

According to the provisions of the ‘Labor Code 2019’ and ‘Decree 145/2020/ND-CP’ which elaborates certain provisions of the Labor Code related to working conditions and labor relations, “Sexual harassment in the workplace means any sexual act of a person against another person in the workplace against the latter’s will”. Accordingly, sexual harassment may occur in the form of a request, demand, suggestion, threat, use of force to have sex in exchange for any work-related interests, or any sexual acts that thus create an insecure and uncomfortable work environment and affect the mental, physical health, performance and life of the harassed person.

Sexual harassment in the workplace shall include:

• Actions, gestures, physical contact with the body of a sexual or suggestive nature.
• Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone or through electronic media.
• Non-verbal sexual harassment: body language, display, description of sex or sexual activities whether directly or through electronic media.

“Workplace” means any location where the employee works as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, on shuttles provided by the employer and other locations specified by the employer.

Obligations of employers to prevent sexual harassment in the workplace

The Labor Code 2019 has made the provisions to develop and implement solutions against sexual harassment in the workplace. It also provided the order, and procedures for handling violations of sexual harassment in the workplace, which are included mandatorily in the internal labor regulations. Accordingly, the employers are obliged to develop and implement solutions against sexual harassment in the workplace in the internal labor regulations or by the appendix promulgated together with the internal labor regulations, which must include the following contents:

• Sexual harassment in the workplace is prohibited.
• Detailed and specific descriptions of what are considered sexual harassment in the workplace according to the characteristics of the works and the workplace.
• Responsibility, deadline and procedures for responding to sexual harassment in the workplace, including those for filing and settling complaints and accusations, and relevant regulations.
• Disciplinary actions against perpetrators of sexual harassment and false accusations, which depend on the nature and seriousness of the offence.
• Compensation for victims and remedial measures.

The employer’s regulations on sexual harassment-related complaints and accusations, and responses to sexual harassment shall adhere to the following principles: (i) Responses are quick and timely, and (ii) privacy, dignity, honor and safety of the victims, plaintiffs and defendants are protected.

Internal labor regulations play an important role in handling sexual harassment. Accordingly, the internal labor regulations need to clearly stipulate specific behaviors, stipulate and time limit for internal handling, and forms of disciplinary measures against sexual harassment at workplace.  When an employee is proven to have committed sexual harassment, he or she will be disciplined in accordance with the company’s internal labor regulations and the current law. To avoid situations where sexual harassment cannot be handled, employers should proactively specify detailed regulations related to this issue in the labor regulations. This unwanted harassment needs to be clearly defined so that it can be easily handled. In addition, the issue should be approached in the direction of the victim and the harasser is not necessarily of the opposite sex and the harasser is not always male.

Sanctions for sexual harassment in the workplace

• Handling labor discipline:

According to Labor Code 2019, there are 04 labor disciplinary measures: (i) reprimand, (ii) deferment of pay rise for up to 6 months, (iii) demotion, and (iv) dismissal. Employers should clearly specify the disciplinary action to be taken depending on the seriousness of sexual harassment in the workplace. Sexual harassment, as well as other harassment in the workplace, will result in disciplinary action against the offending employee. The highest form of labor discipline for sexual harassment in the workplace is dismissal. Accordingly, employees who commit acts of sexual harassment at the workplace as stipulated in the labor regulations will be disciplined and fired. The order and procedures for disciplinary measures related to sexual harassment in the workplace are prescribed as follows:

• In case an employee’s violation is discovered when it is committed, the employer shall prepare a violation record and inform the internal employee representative organization of which the employee is a member, or the employee’s legal representative if the employee is under 15. In case an employee’s violation is discovered after it is committed, evidence of such violation must be gathered.
• Within the time limit for disciplinary procedures, the employer shall hold a disciplinary hearing as follows:
• At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants (the representative organization of employees to which the employee is a member, the employee , the lawyer or the representative organization of employees to defend him/her. If the employee is under 15 years of age, his/her parent or a legal representative must be present) of the contents, time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. The employer shall make sure that the participants receive the notification before the hearing takes place.
• Upon receipt of the employer’s notification, the mandatory participants as mentioned above shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision.
• The employer shall conduct the disciplinary hearing at the time and location mentioned In case any of the mandatory participants does not confirm his/her participation or is/are not present, the employer shall still conduct the hearing.
• The contents of the meeting handling labor disciplinary measures must be recorded in written minutes and must be ratified before the end of the hearing. The minutes shall bear the signatures of the participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.

Within the time limit for disciplinary procedures, the person having the power to initiate disciplinary procedure shall issue a disciplinary decision and send it to the mandatory participants.

• Initiating a lawsuit for compensation for damage

After the sexual harasser has been disciplined and dismissed according to internal labor regulations, the employee who has been sexually harassed still has the right to initiate a lawsuit for compensation for non-contractual damages according to the Civil Code, 2015. This requirement obliges the harasser to compensate for damages and loss of physical and mental health caused by the harassment acts.

• Handling criminal

In case the harasser commits the worst acts of sexual harassment such as rape, sexual abuse etc., with all the elements constituting the crime specified in the Criminal code, the harasser may be criminally prosecuted.

It can be said that sexual harassment is an ongoing reality in the workplaces and the Labor Code 2019 has generally laid the ground for legalizing this issue. This is considered a practical solution and an advancement of the law to create a stable and comfortable working environment for employees, which contributes to improving the quality and efficiency of work.

Date of writing: 17th June 2021

This article is based on the current laws at the above recorded time and may no longer be relevant at the time readers access this article due to changes in applicable law and specific cases which the readers want to apply. Therefore, this article is for reference only.

Source: plf.vn