By Obiter07
Nothing is as unwelcome as advances that are unsolicited and indecent. It can come in all shapes and forms. Thankfully, the law now penalizes such acts in REPUBLIC ACT NO. 7877 (AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND FOR OTHER PURPOSES) otherwise known as the “Anti-Sexual Harassment Act of 1995.”
In particular, the law seeks to protect “workers, employees, applicants for employment, students or those undergoing training, instruction or education” and to penalize “all forms of sexual harassment in the employment, education or training environment (Section 2).”
By whom committed
However, the law’s definition of harassment seems too limited. It only happens when “an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.” (Section 3)
Those who induce the commission of sexual harassment, or who cooperate in the commission thereof shall also be held liable under the law. (Section 3)
The legal definition begs a couple of critical questions: Can’t sexual harassment be committed by a peer or a subordinate? Can’t it be committed without demanding, requesting or requiring sexual favors? The answers are what prompt us to consider the legal definition as too narrow. Being a key component of sexual harassment, “sexual favors” are further discussed below.
When committed
In general, sexual harassment is committed at work when:
a) the sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee
b) the act would impair the employee’s rights or privileges under existing labor laws; or
c) the act would result in an intimidating, hostile, or offensive environment for the employee. (Section 3)
In education or training, it is committed:
a) against one who is under the care, custody or supervision of the offender;
b) against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
c) when the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or
d) when the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.”(Section 3)
Sexual Favors
But what constitutes sexual favors? Would a clever male boss asking for his head or shoulders to be massaged by a female employee qualify? Is asking a subordinate out to dinner already a form of harassment or a gesture of sincere admiration? As the law does not cover harassment of peers and superiors, should subordinates now be fearful of being promoted from being a subordinate to a colleague of a sexual harasser?
In other jurisdictions, sexual harassment seems to over a broader range of actions. There are dangers that a law may be overbroad but it may need to be in order to afford sufficient protection to those that may be affected. In the United States, there is such a thing as harassment consisting of a “hostile environment” where the “the unwelcome sexual conduct, by supervisors or co-workers, is so pervasive or severe that it creates a hostile work environment which interferes with an individual’s work performance.”[1]
For example, sending obscene pictures via or cracking off-color jokes does not appear to be captured by our statute but they are no less a form of harassment and may even be more difficult to cope with than an outright indecent proposal. What an offender cannot do directly, he or she may accomplish indirectly through other means. The law does make mention of “an intimidating, hostile or offensive environment” independently of sexual favors.
The narrow scope of the law should lead companies to address this deficiency through its own codes of conduct.
It could be tricky as there are dangers to having too broad a definition. One would assume that it would be ok to look but not to touch. Well, in one case, a man was sentenced to 10 days in prison for sexual harassment in Italy for staring at a woman during the length of a train ride. We trust that the sight was worth the penalty.[2] One can look but not too much!
Employer’s Duty
It is the “duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual. Towards this end, the employer or head of office shall:
1) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.
Said rules and regulations shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
2) Create a committee on decorum and investigation of cases on sexual harassment. It shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment. (Section 4)
The employer or head can “be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken thereon.” (Section 5). This is one instance where the acts of someone else can come to haunt you or your company.
Other challenges
Harassment as defined in the Act is not that easy to establish save for an employer foolish enough to commit indiscretions in public. These are usually done on the sly. The Supreme Court has ruled that “Any employee, male or female, may charge an employer or superior with sexual harassment, but the claim must be well substantiated. DIGITEL TELECOMMUNICATIONS PHILIPPINES, INC., et al., vs. [G.R. No. 166039. June 26, 2006.].” In this case, the Court just gave no credence to, among others, the allegations of acts committed at a party where there were so many people, finding this contrary to human experience.
Once proven, however, sexual harassment can result in imprisonment of not less than 1 month nor more than 6 months, or a fine of not less than P10,000 nor more than P20,000, or both such fine and imprisonment at the discretion of the court. (Section 7) This is without prejudice to “a separate and independent action for damages and other affirmative relief.” (Section 6)
Despite the weaknesses of the law, an offended party may seek to invoke other statutes such as the provisions of the Revised Penal Code on acts of lasciviousness. Fortunately, there are other ways to seek redress whether under another law or pursuant to your employment manual.
[1] Kelly Stabinsky, Supreme Court Answers Sexual Harassment Questions, Employer’s Duty http://www.now.org/nnt/05-98/supreme.html
[2] Reuters, “What are you starin’ at?” Fri Apr 18, 2008 12:59pm EDT.
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