Sexual harassment in the workplace needs to be taken very seriously, given that more than 75 countries have relevant laws in place. The onus is on employers to develop policies and procedures to make sure their employees fully understand the ramifications and solutions that each country enforces. Failure to do so can have severe cost and business consequences.
The rise of the #MeToo movement makes this an even more sensitive issue, as a publicized failure can adversely impact your brand image. In this article, we consider a few key aspects for HR professionals and company leaders relating to this issue, which should provide a general framework. However, it is critical to understand each country’s rules and regulations and to rely on trusted counsel for specific guidelines.
Is a global policy on sexual harassment sufficient?
No, it is necessary but not sufficient in itself if your company operates in more than one country. In each country where you do business, you need to have a specific policy in accordance with local legislation, coupled with a fast-track procedure for addressing complaints. This is best presented as a global policy backed by country-specific policy addenda. Your organization also needs to have a system in place to deal with false complaints if they happen.
What is sexual harassment?
The definition and interpretation of the term “sexual harassment” differs from country to country. The definition commonly includes impeding another employee from freely moving from one place to another, yelling, repeated and unwelcome sexual advances, lewd comments, or distasteful jokes affecting work. Simply touching a colleague on the shoulder without their consent might be considered hostile. Even a lighthearted comment that makes a colleague uncomfortable may be workplace harassment if repeated often. In the U.K., seemingly innocent behavior that is not usually interpreted as harassment can be harassment if the behavior is repeated after a colleague has asked for it to stop.
Who is covered by the local law?
The natural answer is all the employees in the workplace. However, in some countries, it can extend beyond this. In India, for example, the law applies to all women entering the premises. The woman can be a client, contractor, vendor or even totally unrelated to the business. In many countries, the employer remains liable for any sexual harassment toward female employees even outside the working space, such as during work-related travel or events such as conferences, seminars, and work parties.
Also, the Indian law is specifically applicable to women and does not cover men. It does not cover LGBT scenarios either, given that the Supreme Court of India only recently legalized being openly LGBT. The law in this area will undoubtedly change over time, and employers need to keep up to date on this rapidly evolving area.
What is the mechanism for addressing harassment complaints?
Many countries have specific regulations on how complaints should be addressed. In India, for example, it is mandatory for companies with nine employees or more (even if none of them are female) to have an internal complaints committee to investigate any sexual harassment complaints. In France, the employer needs to involve an occupational doctor while investigating any harassment claim. In addition, the documents relating to the complaint should be handwritten and in an affidavit format. Many countries also specify the actions that can be taken against an offending employee. Clearly, it’s important to know the specific requirements of each country where you employ workers to properly address harassment complaints. [Read related article: The 10 Key Components of an Effective HR Workplace Investigation]
What are the employer liabilities in each country?
This is a new area, so many employers are unaware of the liabilities associated with harassment claims. In some countries, the penalties are heavy for any noncompliance. In Spain, for example, the penalty can be as high as 190,000 euros. In the U.K., penalties are potentially unlimited. In India, the company may not have any penal liabilities as long as it follows the legal requirements. In Hong Kong, the Sex Discrimination Ordinance stipulates vicarious liability on the part of an employer. [Read related article: LegalZoom Lawyer Discusses How to Shield Your Business From Potential Lawsuits]
What are the specific compliance requirements?
Every country has some rules, such as the formation of a committee, a mandatory policy and various reports to be submitted to governmental authorities. For example, in Canada, an employer with six or more regular workers must have a written workplace harassment policy in place and review it at least annually. A workplace anti-harassment program is also required, along with a written policy indicating measures and procedures for reporting incidents of workplace harassment, including the manner of investigation. Many countries also specify steps to ensure privacy of these matters.
Do you have a mechanism to identify and penalize false complaints?
False complaints are another issue you should prepare for with the advent of the anti-sexual harassment regulations. Various countries address this problem differently, and it’s necessary to have mechanisms in place to identify as well as penalize such complaints.
What are the some of the mechanisms for termination?
Unlike the United States, most overseas employees are not considered “employees at will.” Instead, an employer needs to provide cause to terminate someone’s employment and go through a process that varies by country. These processes can be expensive and time-consuming, and not following the processes accurately can result in penalties of three times the base salary, so you need to be very cautious.
Many countries require a notice period to terminate employment, which can vary by the seniority of the employee. In addition, some countries impose a notice period, which may be set by a labor code (as it does in Germany) or be subject to a collective bargaining agreement (CBA). You may not be aware that the employer is obligated to continue to pay the employee during the notice period, even if they are not working. In some cases, termination may require you to first put the employee on a performance improvement plan, which sets out clear targets for improvement and is monitored over time.
There are other times when the employee may need to be part of a formal meeting to discuss harassment issues prior to official warning or actual termination. The employee may have the right to be accompanied by another person to these meetings. The onus is on the employer to make sure the employee knows about this right, or the entire process of termination could become invalid.
All this speaks to the importance of having strong #MeToo policies in place that make clear to employees what is proper and acceptable workplace behavior. Failure to do so may lead to avoidable problems for both the employee and the organization. In today’s #MeToo-conscious world, as a business owner or leader, you should proactively take these steps and be prepared to follow the international laws associated with your country or risk negative impact to both your bottom line and workplace morale.