Sexual Harassment in the Workplace: a Global Challenge

Over 122 countries prohibit sexual harassment in the workplace and 116 extend this protection to both women and men. In the aftermath of the #MeToo movement, employers are, more than ever, acutely aware of the global risks posed by sexual harassment. These include individual and corporate reputational damage, the risk of litigation, vicarious liability (in some legal systems) and criminal proceedings, as well as a negative impact on staff productivity, recruitment and retention.

Businesses have acted to strengthen workplace policies, introduce training and reinforce a culture of dignity and respect. Yet surveys around the world consistently suggest that sexual harassment remains under-reported in the workplace.

A recent UK poll found that two-thirds of Britons who have been harassed in the workplace failed to report their experience to anyone. This is undermining the effectiveness of workplace policies which, typically, depend on reporting to tackle issues and prevent a reoccurrence.

In this article we highlight some key issues when managing global harassment investigations, and review the latest legal developments, to support employers in their efforts to build employee trust in reporting and to reduce sexual harassment in all jurisdictions.

Managing global sexual harassment investigations – lessons learnt

Investigating sexual harassment across different jurisdictions needs careful handling, both legally and culturally.

Legal pitfalls

Some countries have procedural requirements that can wrong-foot the unwary. These may mandate the appointment of specific bodies or people to investigate complaints, such as an Internal Complaints Committee in India which must be constituted with a minimum number of female members.

Déborah Attali, employment partner in Eversheds Sutherland’s Paris office, says that employers should take care to involve the works council in French sexual harassment complaints.

‘Generally, the works council members must be informed of the complaint and involved in the investigation process. As such, the complaint is “on the record”.’

Similarly, in Germany, Frank Achilles, employment partner in Eversheds Sutherland’s Munich office, warns employers conducting sexual harassment investigations ‘to beware of triggering fixed timescales within which a dismissal must take effect in order to be lawful. This means that the investigation should commence as quickly as reasonably possible, with the alleged perpetrator interviewed last. The risk being that a dismissed employee may seek reinstatement if the dismissal is not handled carefully.’

Data privacy rules also differ across countries and non-compliance, particularly across the EU, risks significant penalties. As such, employers gathering evidence as part of an investigation must consider the lawfulness of accessing CCTV images, personal messages on a work device or other personal data. A recent Swiss court decision illustrates the difficulties for employers. The court held that an employer acted unlawfully when reviewing private WhatsApp messages on a business mobile phone. It decided that unless the employer had clearly communicated the rules around the personal use of work devices, then employees had reasonable expectations of privacy, even on a business mobile phone.

Cultural challenges

Workplace culture, particularly where operations are dispersed globally, far from the head office location, must also be addressed if businesses are to change behaviour. In our experience, the appetite to raise and address issues can vary and unless the business establishes a global standard of behaviour that is universally applied in local contracts of employment and workplace rules, it can be difficult to ensure consistency of approach.

Local resistance to sexual harassment investigations can also arise where the alleged perpetrator is a key performer or leader in the business. It may want to retain the employee, despite the misconduct. While #MeToo has helped to shift the debate on these issues, bringing in an independent investigator can also help to achieve an appropriate outcome.

An enduring cultural challenge is giving local staff the confidence to speak up, wherever they are in the world and whatever the size or structure of the local team. Employers should not assume that the number of complaints is an accurate reflection of the level of harassment happening in a country. Even if a business’s head office has launched sexual harassment policies and training, employees may not feel sufficiently secure to raise a complaint if the complaint involves a local manager who has the power to dismiss or to influence their career.

Other factors may also come into play, as Jennifer Van Dale, Eversheds Sutherland employment partner in Hong Kong explains.

‘Power dynamics can make it very difficult for employees to challenge their boss, and this can be made more difficult in some countries if the topic is socially taboo, such as sex.’

Monitoring the effectiveness of policies and taking proactive steps to detect harassment will help to identify any warning signs or hotspots. For example, employers should check what is happening in practice by conducting anonymised staff surveys, asking questions at exit interviews, analysing absence data and canvassing views through mentoring programmes and staff networks.

Recent legal developments in sexual harassment

The fallout from #MeToo has also galvanised legal change. In 2019, the right of everyone to work free from violence and harassment was agreed in an international treaty (the ILO Violence and Harassment Convention) and will be progressively ratified by the 187 International Labour Organisation member states.

A number of themes have emerged globally from those countries that have implemented or proposed new harassment-related legislation. One such theme is restricting or eliminating the use of confidentiality/non-disclosure agreements (NDAs). Whilst it is recognised that there may be legitimate reasons to use such agreements to the benefit of both parties, the concern is that they can be used inappropriately to cover up issues of harassment and silence victims, resulting in hidden systemic issues within an organisation not being tackled and eliminated, with risk to other workers.

For example, in the US state of New Jersey, legislation now prevents the enforcement of certain non-disclosure provisions contained in employment contracts and settlement agreements. Other states have also passed laws banning mandatory arbitration for sexual harassment claims. In the UK, legislative proposals provide that confidentiality agreements will be legally ineffective to prevent disclosures to certain organisations, including law enforcement agencies.

Another emerging theme is to place a greater responsibility on employers to take action to prevent sexual harassment from occurring. In some US states there are new requirements for a sexual harassment prevention policy that meets minimum prescribed requirements, including revamping existing employee training or introducing new training.

Recent legislation in Denmark clarified what might constitute sexual harassment, which necessitates employers reviewing workplace norms against the new standard, and new government guidance requires employers to complete a written risk assessment on harassment in the workplace. In Romania, employers are now obliged to implement an internal policy aimed at eliminating harassment at work. Hong Kong has also recently expanded the scope of protection against sexual harassment in the workplace, with a new code of practice issued by the Equal Opportunities Commission. In the UK, developments have taken the form of proposals for a legal duty to prevent harassment and a statutory code of conduct to help employers understand and demonstrate that they have taken all reasonable steps.

Greater transparency, through corporate disclosures, is also on the rise. For example, in Canada, amended legislation has been proposed to ensure that employers respond effectively to incidents of alleged harassment, including mandatory recording and reporting obligations. In some US states, disclosure of settlements, and whether such settlements included a NDA, will be required.

However, legislative developments to protect against harassment have not been globally universal and, despite the significant impact of #MeToo in a number of countries, less traction has been experienced in others. For example, in some countries in Asia, criminal proceedings are the only legal recourse, which may contribute to workplace harassment going unchallenged.

Comment

With legal change ongoing in different countries and sexual harassment controversies continuing to attract public attention, employers around the world are advised to be vigilant and to regularly review their policies and training.

To maintain investor confidence, staff morale and avoid brand damage, employers will be expected to demonstrate a genuine commitment to eliminating sexual harassment in the workplace and ensuring wider issues of inequality are tackled. Achieving this will typically require a long-term focus on creating and maintaining trusted reporting frameworks, on ensuring an appropriate workplace culture and on the effectiveness of policies across all operations, whatever the location, including taking appropriate action if harassment is found to have occurred.