A. DEFINITIONS AND GENERAL DUTIES 283
1. DEFINITION OF SEXUAL HARASSMENT 283
2. LAWS PROHIBITING SEXUAL HARASSMENT 283
3. DUTIES ON EMPLOYERS 283
B. SEXUAL HARASSMENT POLICIES 285
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 285
5. WHAT THE POLICY MUST CONTAIN 285
6. SUGGESTED POLICY CONTENT 285
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 286
8. MAKING THE POLICY BINDING ON EMPLOYEES 286
9. LIMITS ON THE CONTENT OF THE POLICY 286
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 286
11. EXTERNAL REPORTING REQUIREMENTS 287
C. RECOURSE 287
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 287
13. PROVING A CLAIM 287
14. REMEDIES AND SANCTIONS 287
D. IMPORTANT LESSONS 288
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By: Benjamin Vaandrager and Catherine Krepel1
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
In Dutch law, sexual harassment is defined as:
‘a certain form of verbal, non-verbal or physical behavior with a sexual connotation which has the purpose or consequence of injuring a person’s dignity, in particular in the event that a threatening, hostile, abusive, humiliating or harming situation is created.’
2. LAWS PROHIBITING SEXUAL HARASSMENT
The three following Acts prohibit sexual harassment:
• The Equal Treatment Act of 2 March 1994, as amended by the Act of 21 July 2007, which incorporates an explicit prohibition against sexual harassment.
• The Equal Opportunities Act of 1 March 1980, as amended by the Act of 21 July 2007, incorporating an explicit prohibition against sexual harassment.
• The Working Conditions Act of 1998, which contains an obligation on employers to implement a general working conditions policy which is aimed at the prevention, or when prevention is not possible, limitation of sexual harassment.
3. DUTIES ON EMPLOYERS
Employers must consider the risks in the company and must establish a general working conditions policy to prevent or, if prevention is no longer possible, to limit sexual harassment in the workplace. Therefore, the employer must take preventative measures, for example by implementing a sexual harassment policy. The employer can also take repressive measures, for example a disciplinary sanction, such as suspension, change of position or
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B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
Besides the statutory requirement to have a sexual harassment policy, based on the Dutch Civil Code, the employer must ensure a safe working environment for its employees. If the employer does not meet this requirement it can be liable for harm suffered by the employee owing to, for example, sexual harassment. Therefore, it is advisable for employers to have a sexual harassment policy.
Sexual harassment also falls within the scope of the Equal Opportunities Act and this is another good reason to have a sexual harassment policy.
5. WHAT THE POLICY MUST CONTAIN
Dutch law does not contain obligations as to the content of a policy. The content should depend on the possible risks within the company.
6. SUGGESTED POLICY CONTENT
A model sexual harassment policy should include:
• the aim of the policy (i.e. a safe working environment) and the people to whom it applies (i.e. the employees)
• a list of all types of sexual harassment, such as sexually explicit comments, unnecessary touching, sexual blackmail, pornographic images in the work place and spying
• an explanation of when behaviour can be considered to amount to sexual harassment that takes into consideration the experience of the victim • the possible procedures to be followed in case of sexual harassment • the option for the employee to appoint a confidential counsellor who can
act on his or her behalf during the procedure
• the complaints procedure used by the Complaints Committee, if one exists within the company
• the option to file a complaint with the Equal Treatment Commission • the disciplinary measures that could be taken by the employer in the case
of sexual harassment.
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workplace or dismissal. Some Collective Labour Agreements include provisions regarding the prevention of sexual harassment, and set out the procedures for complaints.
There are no specific guidelines as to what the content of the policy should be or the procedures that should be observed. Besides the obligation to establish and disclose the rules regarding sexual harassment, the employer could, for example, draft a complaints regulation and appoint a confidential counsellor and/or a Complaints Committee to seek to ensure observance of the policy. If the employer does not meet the obligation to produce a policy regarding sexual harassment, the works council can take action against the employer. For example, the works council can ask the Labour Inspection to compel the employer to establish and implement a sexual harassment policy. The powers of the works council will be discussed in section 7.
Employers are not required to offer training on sexual harassment to their employees. However, as mentioned above, employers must disclose the contents of the policy to their employees in order to make sure that the employees are aware of the rules and the sanctions in case of violation of those rules. Further, employers must announce to the employees the different routes to be followed if an employee has been victimised by sexual harassment, for example, that he or she can see the confidential counsellor and/or file a complaint with the Complaints Committee. In order to set up this procedure, the employer may offer training to certain employees who are willing to be appointed as internal confidential counsellors and/or members of the internal Complaints Committee.
Note that there is no statutory requirement to employ a compliance officer. In general, employers are responsible for the observance of the policy.
The procedures by which complaints should be investigated depend entirely on the employers’ facilities and available resources. If the company has a confidential counsellor and/or a Complaints Committee, they will investigate the complaint. In the absence of a confidential counsellor and/or a Complaints Committee within the company, the employee could go to the works council, company doctor or to the Dutch Equal Treatment Commission.
In order to create a safe workplace the employer could, for example, seek to minimise the number of isolated places in the workplace and ensure that everywhere is well lit.
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justify why the action taken is reasonable, otherwise the perpetrator will have grounds to claim the action is void.
11. EXTERNAL REPORTING REQUIREMENTS
Under Dutch law there are no requirements to report to external bodies in relation to sexual harassment. However, the Labour Inspection can visit organisations in order to verify whether the employer has a working conditions policy and to assess whether or not the policy, if one exists, is sufficient.
C. RECOURSE
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT
Pursuant to Dutch law the employer can be held liable for material and immaterial damages suffered by an employee as a result of sexual harassment in the workplace. The employee can start a procedure before the Cantonal Court in order to claim damages. Because of the fact that a decision of the Dutch Equal Treatment Commission is not binding, the employee must always start a procedure before the Cantonal Court in order to claim damages. The Cantonal Court will, however, in most cases follow the decision of the Dutch Equal Treatment Commission.
13. PROVING A CLAIM
In order to successfully claim damages from his or her employer, the employee must present facts which may give rise to a presumption of discrimination. The employer has the burden of proof that the alleged harassment has not taken place or that it complied with its internal sexual harassment policies in all respects.
14. REMEDIES AND SANCTIONS
Besides medical and/or psychological care, the victim could claim material and immaterial damages if the employer is held liable for the employee’s suffering caused by sexual harassment in the workplace. The conditions for being entitled to immaterial damages are very strict and therefore immaterial
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7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL
Pursuant to the Dutch Works Councils Act, the employer needs the consent of the works council regarding the establishment, amendment or revocation of a working conditions policy, including a sexual harassment policy. If the employer does not meet the obligation to implement a policy regarding sexual harassment, the works council can take action against the employer. For example, the works council can ask the Labour Inspection to compel the employer to establish and implement a sexual harassment policy.
8. MAKING THE POLICY BINDING ON EMPLOYEES
The sexual harassment policy can be made binding upon employees in several ways. For example, by publishing the policy on the intranet or including it in a staff handbook. It is also possible to incorporate the policy in the employee’s employment contract. However, this latter option is less common in the Netherlands.
9. LIMITS ON THE CONTENT OF THE POLICY
Dutch law does not impose any limits regarding the contents of the sexual harassment policy and what is covered will depend on the culture of each company. However, in order to protect employees against any violation of their privacy, the policy and the complaints procedure must be in line with privacy legislation. Further, the contents of the policy and the procedure must satisfy the so-called ‘principles of good employership’. These principles rule that the employer must always act with care towards the employee and must take the interests of the employee into account.
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY
There are no statutory limits regarding the actions the employer can take in case of sexual harassment. The actions the employer can take are often described in the policy itself. If so the employer will, in principle, be limited by the actions prescribed in the policy. If there are no such limitations, the employer can choose the action it considers to be most appropriate, on a case by case basis, in light of the seriousness of each claim of sexual harassment. In some cases summary dismissal may be the proper course of action, yet in others a warning or suspension will be sufficient. Of course the employer must
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damages are awarded only rarely. Most types of harm fall under the scope of material harm; for example, psychological harm seems at first to be immaterial, but the costs of psychological care are considered to be material. The scale of the amounts awarded differs in each case depending on the extent to which the employer failed to comply with its obligation to provide a safe workplace or the extent to which the employee is to blame for what took place.
D. IMPORTANT LESSONS
15. IMPORTANT LESSONS FROM CASE LAW
Case law shows that sexual harassment can happen in different forms, such as sexual comments, unnecessary touching, spying, pornographic images, violation and rape. Moreover, sexual blackmail is also considered to be a form of sexual harassment.
Case law shows the importance of having an adequate sexual harassment policy. For example, in a case before the Cantonal Court, an employer requested the court to dissolve the employment contract of an employee who had made anonymous telephone calls to a female colleague. In the course of these telephone calls the employee had made serious and intimidating comments of sexual nature. The internal Complaints Committee had investigated the complaint and advised the employer to terminate the employment contract. The court dissolved the employment contract without granting any compensation, despite the length of employment of the employee (20 years). One of the most important considerations of the court was that the employer has implemented an active policy against sexual harassment within its company, which was known and available to all employees. Therefore, the perpetrator should have known that his behaviour could lead to dismissal.
In another case the court awarded damages to an employee who had undergone gender reassignment surgery from a male to a female. The Equal Treatment Commission judged that the employer was guilty of sexual harassment. The employer had made comments about the employee’s choice of fashion and joked about having employed a man instead of a woman. These comments were considered to be sexually intimidating. Furthermore, the employer had not implemented a sexual harassment policy within the company in order to prevent sexual harassment. Therefore, the employer had breached his duty to ensure a safe and healthy work environment.
Panama
A. DEFINITIONS AND GENERAL DUTIES 293
1. DEFINITION OF SEXUAL HARASSMENT 293
2. LAWS PROHIBITING SEXUAL HARASSMENT 293
3. DUTIES ON EMPLOYERS 294
B. SEXUAL HARASSMENT POLICIES 294
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 294
5. WHAT THE POLICY MUST CONTAIN 294
6. SUGGESTED POLICY CONTENT 294
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 296
8. MAKING THE POLICY BINDING ON EMPLOYEES 296
9. LIMITS ON THE CONTENT OF THE POLICY 296
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 296
11. EXTERNAL REPORTING REQUIREMENTS 297
C. RECOURSE 297
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 297
13. PROVING A CLAIM 297
14. REMEDIES AND SANCTIONS 297
D. IMPORTANT LESSONS 297
Sexual Harassment Prevention - PANAMA
By: Mario Rognoni and Julio Contreras1
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
Law 9 of 1994, which defines and establishes rules for the workplace in Panama, forbids public officials from engaging in sexual harassment behaviours and defines sexual harassment as ‘sexual, physical, verbal gestures or written harassment, from one employee to another, of the same or of a different gender, that has been neither expressly nor tacitly requested, and that has an adverse effect on the working environment.’
Sexual harassment is regulated by Article 175 of the Criminal Code as follows: ‘[A person] who by sexual motivation harasses a person of one or other sex will be sanctioned by imprisonment for between one to three years or a fine amounting to the equivalent number of days or by weekend arrest.’ These sanctions will be aggravated to two to four years’ imprisonment in the following cases:
• If the victim has not reached 18 years of age or
• If the perpetrator commits the crime whilst taking advantage of his or her position.
2. LAWS PROHIBITING SEXUAL HARASSMENT
Article 175 of the Panama Criminal Code, s15 of Article 138 and s15 of Article 213 of the Labour Code are the laws that prohibit sexual harassment in Panama.
Pursuant to s15 of Article 213 of the Labour Code, sexual harassment or immoral or criminal conduct by an employee during the performance of his work is a justified reason for an employer’s decision to terminate the employment relationship.
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• A definition of sexual harassment such as that provided by the
International Labour Organisation, i.e. ‘sexual conduct or other conduct based on sex that affects the dignity of women and men, and is unpleasant, unreasonable and offensive to the victim’.
• A list of sexual harassment behaviours that includes, but is not limited to (i) unnecessary and unwanted physical contact; (ii) annoying staring; (iii) sexual leering or sexually-related gestures; (iv) compromising invitations; (v) solicitation of sexual favours; (v) sexual insults, observations, jokes and/or insinuations or innuendo; (vi) sexual touching; (vii) rubbing against the victim and/or other person in a sexual manner; (viii) spreading sexual rumours about the victim; (ix) showing, giving or leaving sexual images, photographs, illustrations, messages or notes; (x) blocking the way in a sexual manner; and (xi) calling the victim gay or lesbian.
• A description of the employer’s responsibilities and the consequences of any failure to meet these responsibilities. Employers must not tolerate sexual harassment within the organisation and may face civil action from the victim or administrative sanctions by the Ministry of Work and Labour Development.
• Details of complaint procedures in respect to allegations of sexual harassment.
• Guidelines for the creation of a committee to investigate complaints of sexual harassment; and details of its reporting procedure.
• A commitment from the employer to provide all employees with a written copy of the sexual harassment policy and any amendments the policy. • Details of the sanctions that may be imposed on harassers.
Once a complaint has been filed before the committee or the employer (as established in the written policy), the organisation should put into place precautionary measures to separate the victim from the harasser, redistribute the victim and harasser’s work day schedules, and take any other necessary measures, based on the gravity of the allegations.
The investigative committee should submit its conclusive report within a reasonable time (e.g. 30 days) to the employer, the victim and the harasser. The employer should impose sanctions that correspond with its recommendations. The employer should also clarify that retaliation against the victim will be prohibited by the employer.
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Moreover, s15 of Article 138 of the Labour Code establishes that it is forbidden for employers to engage in sexually harassing behaviour.
3. DUTIES ON EMPLOYERS
Pursuant to s28 of Article 128, the employer must establish an equitable, reliable and practical procedure for the investigation of complaints relating to cases of alleged sexual harassment and the imposition of appropriate punishment. However, beyond this, there are no other duties on employers to prevent and deal with cases of sexual harassment. As such, there is no requirement to have a policy on sexual harassment, no requirement to offer training on sexual harassment to employees, no requirement to have a compliance officer, nor any requirements in relation to how complaints of alleged sexual harassment should be investigated.
B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
We would recommend having a sexual harassment policy in order to help prevent sexual harassment from occurring amongst employees, with a view to providing a safer and more productive working environment.
5. WHAT THE POLICY MUST CONTAIN
There are no specific obligations as to what must be contained within a policy on sexual harassment. The employer may determine the terms and conditions of any such policy provided that they are not contrary to the provisions of the Panama Labour Code.
6. SUGGESTED POLICY CONTENT
The employer should be fully accessible to any claims or queries filed by any employees with regard to any kind of sexual harassment. We therefore recommend that employers implement a sexual harassment policy within the company, and suggest it should include:
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11. EXTERNAL REPORTING REQUIREMENTS
There are no reporting requirements to external bodies in relation to sexual