Sexual harassment at work is an issue that, unfortunately, never goes out of style. Despite the advances made in equality, women are still the most affected in this regard, although there are also cases of harassment of men. The Ministry of Labour has published for this and other topics about Prevention Technical Notes, which have adapted us to know how to prevent, identify and eradicate this practice vexatious.
There is agreement among scholars of sexual harassment different about this is an old problem that has coined a new term to him. Thus, sexual harassment is recognized, in an increasing manner, as an element affecting working conditions, as an increasingly serious for the employer problem and the victim and that entails a number of consequences both on the victim and on the organization not inconsiderable.
On sexual harassment, and especially its victims, there are widespread beliefs that do not correspond to reality and therefore can be categorized as myths. First, there is the belief that victims of sexual harassment are always women . While it is true that sexual harassment is a phenomenon which predominantly affects women, the figures provided by the European Survey indicate that men are also victims of this phenomenon.
A second belief is that there are typical victims of sexual harassment and that such “typicality” is related to the traditional canons of beauty. However, the problem of harassment has more to do with power relations with sex. In this sense we can not speak of typical victims exist, but that there is an association between the probability of being a victim of sexual harassment and the degree of economic dependence and the overall vulnerability of the person.
The International Labour Organization (ILO) notes that women most likely to be harassed are widowed, separated, divorced, women working in male-dominated jobs, women recently entered the workforce and women with contracts irregular employment.
The definition of sexual harassment term is important in that its formulation will determine both the behaviors that shape and therefore the range of prohibited behavior as the magnitude of the phenomenon (or number of victims of sexual harassment).
The conduct of a sexual nature or other com behaviors based on sex affecting the dignity of women and men at work, including the conduct of superiors and colleagues, is unacceptable if:
- Such conduct is unwanted, unreasonable and offensive to the person who is the subject of it.
- Negative or subjecting a person to such conduct by employers or workers (including superiors and colleagues) is used explicitly or implicitly as a basis for a decision which affects on access that person to vocational training and employment, on the continuation thereof, which wants wages or other employment decisions.
In this sense are elements clearly emphasize the sexual nature of the conduct of harassment, such conduct is unwanted by the victim, it is an annoying behavior, lack of reciprocity and the imposition of behavior.
Must contemplate sexual behavior in a broad sense, noting that in the conduct of a sexual nature are included verbal or non-verbal, or physical nuisance.
Unwanted physical contact (physical conduct of a sexual nature) can be varied and go from unnecessary touching, patting or pinches or friction with the body of another employee to attempted rape and coercion to sexual intercourse. Much of these behaviors amount to a criminal offense if it took place on the street between strangers and some of them are already criminalized by the Spanish legislation.
Verbal conduct of a sexual nature may include unwelcome sexual advances, propositions or pressure for sexual activity; insistence on a social activity outside the workplace after it has been made clear that this insistence is annoying; offensive flirtations; insinuating, indirect or obscene comments comments.
In the non – verbal conduct of a sexual nature they would fall display of sexually suggestive or pornographic pictures, objects or written materials, leering, whistling or making certain gestures.
One of the problematic aspects of sexual harassment resides in those cases that unwanted behaviors fail to violent action of the first type, but consist of suggestions, proposals, verbal statements also assaulted affected workers but they do more from a mental perspective than physical, and that violent actions have a clear criminal coverage.
Therefore, determining which behaviors are annoying or not is something that depends on the receptor behavior, at which point the intent irrelevant issuer behaviors. If it depended on the intent of the perpetrator, the victim would be forced to accept and tolerate all kinds of offensive behavior in cases where the author did not intending to harm her.
Such conduct creates an intimidating, hostile or humiliating work environment for the person who is the subject there of; and that such conduct can be, to finish circumstances, contrary to the principle of equal treatment.
Types of sexual harassment
Two basic types of sexual harassment are distinguished, depending on whether or not there an element of blackmail in it: the quid pro quo harassment and creating a hostile work environment.
- Giving and taking harassment. In this type of harassment it occurs what is properly a sexual blackmail (that in exchange for that). Through it, you force an employee to choose between submitting to the sexual demands or losing or see harmed certain benefits or working conditions. It is an abuse of authority so it can only be done by a person having power to provide or withdraw a job benefit. This type of harassment involves situations where the refusal of a person to a conduct of a sexual nature explicitly or implicitly used as a basis for a decision affecting the person access to vocational training, continued employment, promotion, salary or any other employment decision (Resolution on the protection of the dignity of women and men, Council of Ministers of European Communities, in May 1990 and Recommendation of the European Commission on the same subject, November 1991). This concept of harassment involves a major problem, which is the exclusion of bullying behaviors among colleagues, the consequences, however, are the same as those of harassment by a superior.
- Harassment that creates a hostile work environment. The recommendation of the European Commission referred also refers to conduct that “creates an atmosphere of humiliating, hostile or threatening harassed for work.”
At the level of effects or consequences, sexual harassment negatively affects work . Impact on job satisfaction, increased attempts to avoid tasks and even abandonment of work; victims are taken free time, which implies an increase in costs to the employer via sick pay and health insurance. When they go to work they are often given lower productivity, less motivation, resulting in less quantity and quality of work. The search for new job means that the company incurs costs for hiring new employees is no evidence that sexual harassment prevention will save more money than the cost of allowing it to continue.
It is also affected the psychological health ; reactions related to stress and emotional trauma, anxiety, depression, states of anxiety, feelings of hopelessness and helplessness, of powerlessness, anger, dislike, abhorrence, rape, low self – esteem … Physical health is also resentful; sleep disorders, headaches, gastrointestinal problems, nausea, hypertension, ulcers, … in short, physical symptoms associated with stress.
In any case, we must consider the impact of harassment of a specific person is moderated by their vulnerability and their styles of response to the situation specific. Moreover, it is important to note that, in many cases, negative consequences differ from those in a situation the label of sexual harassment and those without. Therefore, the experience of harassment is most important in determining the negative consequences that regarded oneself as a victim of sexual harassment.
- Statement. It should be a statement of employers in the sense of showing its involvement and commitment to the eradication of harassment, where sexual harassment is prohibited, defending the right of all workers to be treated with dignity, stating that harassment behaviors or condone nor allow and explaining the right to complaint of workers when they occur. It will explain what is meant by inappropriate behavior becoming clear that the directors and superiors have a real duty to implement the policy against sexual harassment. The statement explain the procedure to be followed for the victims of harassment, ensuring reliability and confidentiality and protection against reprisals. The possible disciplinary measures will be specified.
- Communication from the statement. The organization must ensure that no harassment policy is communicated to workers and that they have understood it ; they know they have a right of complaint for which there is a certain procedure and that there is a firm commitment not to tolerate bullying behaviors.
- Responsibility. The responsibility for ensuring respectful working environment with the rights of those it up is for all workers, recommending controls to take positive action to promote non – harassment policy.
- Training. It should provide general training to officers and managers, enabling them to identify the factors contributing to harassment occurs not already familiar with their responsibilities in this area. Those who are assigned specific tasks sexual harassment will have to receive special training to successfully perform their functions (legal information on the subject, social skills , conflict management, operating procedures, …). In general training programs of the company may include the issue of harassment.
It is important that the operating procedures following a sexual harassment situation are well established, so as to solve the problem quickly and effectively. The complaint procedure is fundamental for the policy against harassment succeed. Two aspects that should be clarified are:
Who and how it has to file the complaint
What are the rights and duties of both the alleged victim and the alleged harasser during the proceedings (for example, whether or not required to activate the internal procedure, if activation thereof excludes or taking other legal action while current, etc.).
- Informal resolution of problems. Since in most cases only the cessation of the harassment seeks, there must be both formal and informal procedures. Informal procedures seek to resolve the situation through direct confrontation between the parties or through an intermediary. By contrast, formal procedures seek a formal investigation into the matter and the final imposition of sanctions if the existence of harassment is confirmed. It should be encouraged to solve the problem, in the first instance, informally (keep in mind that this is misunderstanding in many cases). If the person has trouble doing itself should be able to do so through a third party (friend, advisor, …). It is advisable to go to the informal formal proceedings where no outcome or is inappropriate to solve the problem.
- Advice and assistance. It is recommended that a person to offer advice and assistance and participate in solving problems in both formal and informal procedures is appointed. The acceptance of such functions must be voluntary and it is advised that there is agreement on his appointment by trade union representatives and trabajadores.A designee will be formed specifically in their new roles; management problem solving, policies and procedures of the organization, etc. and will be allocated the necessary resources to carry out its task.
- Complaints procedure. The procedure must provide workers with the assurance that their complaints and allegations will be treated with all seriousness. The normal procedures for processing complaints may not be suitable in cases of sexual harassment and that standard procedures usually require that claims be submitted in the first instance to the immediate superior. Problems in these cases can come in two ways: first, if the immediate superior is a man and a woman victim of harassment, this may be embarrassed to report incidents or believe you can not take seriously. Second, whether the accused of harassment it is in the hierarchical structure of the victim. These cases are particularly important specially designated persons to intervene in proceedings for harassment.
- Investigations. The investigations must be carried out with full respect for all parties. They must be governed by independence and objectivity. Researchers should have no connection with the parties. You must set a time limit for the investigation in order to avoid, on the one hand, a process in excess dilated and, secondly, the inability to go to legal.Es convenient system that the parties may appear in investigations with someone trust (friend, adviser, union representative, …) which research is carried under a contradiction and that confidentiality is maintained.
- Infractions and disciplinary sanctions. It is appropriate disciplinary rules clearly identify bullying behaviors and penalties.
In Spain, the legal treatment that has been given to sexual harassment has happened in recent years since 1995 of not having a criminal own which forced the courts address it through other aggrieved rights; privacy, equality, … to be recognized, on the one hand, as an autonomous offense and, secondly, to be explicitly referred to as very serious labor abuses. Legally possible to consider the problem from a triple legal order: constitutional, social and criminal.
First, through the conduct of a sexual harassment victim, depending on the case, you can see injured several fundamental rights, such as:
- The right to privacy (art.18.1 of the Spanish Constitution, EC )
- The right to physical and moral integrity ( art. 15 EC ) in relation to art. 40.2 EC since such actions affect the health of those affected.
- The right to equality ( Art. 14 EC ) in that most of these actions occur against women In this way, tort fundamental rights, include the prosecution to restore the infringed constitutional property and get a Compensation for damages.
Secondly, labor legislation also addresses the issue. Thus, the ERTW (Recast of the law of the Workers ‘ Statute, approved by Royal Decree 1/1995 of 24 March) in its 2nd Section (basic labor rights and duties), art. 4 (Labour rights) Point 2 says: “In the employment relationship, workers are entitled; … e) to respect for their privacy and due consideration for their dignity, including protection against verbal or physical offenses of sexual nature” .
For its part, the art. 50.1.c.1 . He notes that “will be just causes for the worker may request the termination of his contract: c) any other serious breach of its obligations by the employer”. (Here the breach of the employer’s obligation to protect the correlative rights worker would be included art. 4.2.e )).
Continuing the articles of ET pointing in his art. 50.2. That “in such cases, the employee is entitled to compensation for unfair dismissal marked” (which according fixes the art. 56.1.a ) is a compensation of 45 days’ salary per year of service up to a maximum of 42 monthly payments). Regardless of this, it is possible to claim compensation for moral damages arising from the lack of respect for privacy and dignity of workers, social being competent jurisdiction.