IDENTIFICATION OF SEXUAL HARASSMENT AT WORK FROM LABOR CODE 2019

IDENTIFICATION OF SEXUAL HARASSMENT AT WORK FROM LABOR CODE 2019

Nguyễn Thị Sương – FDVN Law Firm

There are many significant change in Labor Code 2019 when it clearly stipulates the sexual harassment at work in Clause 9, Article 3: ““sexual harassment” in the workplace means any sexual act of a person against another person in the workplace against the latter’s will. “workplace” means the location when an employee works under agreement or as assigned by the employer.”

The survey’ result of Vietnam General Confederation of Labor from 1,500 female workers before the effective date of Labor Code 2019 showed that there were around 20,2% of the female workers suffered from sexual harassment[1]. Sexual harassment in the workplace is a sensitive issue that makes many workers choose to keep it secret instead of speaking out to protect their honor and dignity. Sexual harassment in the workplace al so exist strongly. The workers usually feel shame, guilt, fear of losing their personal honor, losing their job or fear of retaliation by harassers, so they do not denounce or complain. Before the Labor Code 2019 took effect, which was January 01, 2021, there was no clear and strong legal frame in the Vietnamese laws to protect the workers from sexual harassment in the workplace, leading to the difficulties in handling individuals who commit violations and preventing the sexual harassment in the workplace.

The loopholes of Labor Code 2012

Labor Code 2012, which took effect on May 01, 2013 and expired on January 01, 2021, was the first Code stipulated that the acts of sexual harassment in the workplace was prohibited[2] and was one of the case that employees can unilaterally terminate the labor contract after informing the employer at least 03 days under the law provisions[3]. However, there were no identification on the specific features of sexual harassment in the workplace in Labor Code 2012 and guidance documents.

One of the cases:

Ms. Tran Thi H and Mr. Pham Quang K were working at A Vietnam Company Limited. At the evening of April 05, 2017, after a Company’s party, in the taxi, Mr. K touched Ms. H’s body. Ms. H disagreed and required Mr. K to stay away from her. Ms. H then filed a complain to the Company on Mr. K’s acts. Mr. K was dismissed by the Company for his behavior. The competent court compared the code of conduct among people and communication between male and female to determine Mr. K’s acts were “harassment”. However, the Court also determined that the time and place of Mr.K’s acts were out of the labor’s relation[4].

From the aforementioned case, it can be seen that althought sexual harassment in the workplace was mentioned in Labor Code 2012, the loopholes of the acts of sexual harassment in the workplace make the competent authorities to compare the acts with the code of conduct and communication among people or with the Labor Regulation of the Company (if any) to resolve without any unifying criteria to determine the right acts of violation.

Because of those loopholes of Labor Code 2012, the acts of sexual harassment in the workplace have happened quietly and often without being resolved thoroughly and on time. This not only adversely affects the mental and physical health of employees but also affects work, reduces labor productivity, and makes the working environment hostile.

By 2015, the Labor Relations Committee, chaired by the Ministry of Labour, Invalids and Social Affairs, in collaboration with the Vietnam General Confederation of Labor and the Vietnam Chamber of Commerce and Industry to develop a "Code of Application for Labor Relations handling sexual harassment in the workplace” so that the employer (agency, organization, enterprise...), together with the employee, develop and integrate it into the internal rules and regulations of the unit as the basis for the prevention and combat of sexual harassment in the workplace[5]. However, this is not a legal document, so the influence and impact are not strong and they're not mandatory, coercive as state power but only on the incentive side. Many employers and organizations even do not issue internal rules and regulations. And if they do it, sexual harassment is not mentioned.

“Code of conduct on sexual harassment in the workplace” is legalized by Labor Code 2019

Decree 145/2020/ND-CP issued by the Government, effective on February 1, 2021, details and guilds the implementation of several articles of Labor Code 2019 on labor conditions and relations to identify this behavior more specifically. This Decree has also dedicated a section to stipulate the prevention and combat of sexual harassment in the workplace. Accordingly, Clause 1, Article 84 clearly stated that: “Sexual harassment defined by Clause 9 Article 3 of the Labor Code may occur in the form of a request, demand, suggestion, threat, use of force to have sex in exchange for any work-related interests; or any sexual acts that thus creates an insecure and uncomfortable work environment and affects the mental, physical health, performance and life of the harassed person.”

Sexual harassment in the workplace includes[6]: a) Actions, gestures, physical contact with the body of a sexual or suggestive nature; b) Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone or through electronic media c) Non-verbal sexual harassment: body language; display, description of sex or sexual activities whether directly or through electronic media.

The workplace mentioned in Clause 9 Article 3 of the Labor Code means any location where the employee works in reality as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, on shuttles provided by the employer and other locations specified by the employer[7].

It can be clearly seen that Labor Code 2019 has selected the content of “Code of conduct on sexual harassment in the workplace” to legalized them into the law provisions applied in the case of sexual harassment in the workplace. This is seen as an important step forward and a fundamental legal framework to protect workers from sexual harassment in the workplace.

From January 1, 2021, sexual harassment in the workplace has been identified, which is the basis for competent authorities to properly and objectively handle violations.

However, many shortcomings still exist…

Firstly, it is difficult to prove violations

Sexual harassment in general and sexual harassment in the workplace, in particular, are often very difficult behaviors to prove, especially sexual harassment by direct words, body language. These acts do not leave obvious harm to health, even though the victims suffer severe psychological crises.

Suppose a person commits sexual harassment regularly with words and body language, but at work, there is no camera to record images and actions of the violator, or there is no witness at work. If the person being harassed cannot record the speech showing that the violator has verbally harassed, it is impossible to determine whether that person has committed a violation. If the settlement is only based on the report of the person being harassed, it may lead to the omission of the violator or wrong attribution, improper handling of the violator.

And one of the excuses often given by the violators is that the behavior is only for the purpose of "joking" leading to difficulties for competent individuals and authorities in the settlement process.

Second, sanctions for violations are not deterrent and prevent

Being prohibited act, but in addition to the labor disciplinary sanctions prescribed in the Labor Code 2019, the sanction for the acts of sexual harassment in the workplace is only at the maximum administrative penalty of VND 300,000 as prescribed at Point a, Clause 1, Article 5 of Decree 167/2013/ND-CP[8].

There is no crimes related to this act in the previous criminal law as well as the current Penal Code 2015. However, seriously insults another person can also be a sign of the crime of "Insults to another person" with a maximum prison term of 5 years[9]. However, that is not enough because the consequences of sexual harassment can be even more serious both physically and mentally.

Does Vietnamese law not consider the act of "sexual harassment" as a serious violation that should be handled for prevention and deterrence? Other countries around the world are fighting very strongly every day to stop this violation, such as:

British is one of the countries issuing the heaviest penalties for sexual assault in Europe. Any form of sexual contact against the victim's wishes is considered sexual harassment. Those accused of sexual assault face a maximum sentence of up to 10 years in prison[10].

Canada classifies sex crimes as very serious with 4 levels: The lowest prison sentence is 6 months with CAD 2,000 (about 38 million Vietnam Dongs) up to life imprisonment. The two most severe forms of punishment are aggravated sexual assault and sexual assault with a weapon, physical assault, and intimidation of a third party[11].

Each state in the US has its own laws about sexual harassment. For example, those who commit this crime in California can be jailed for 24 to 48 months and pay a fine of up to USD 10,000  (more than 230 million Vietnam Dongs). Meanwhile, in New York, the minimum penalty for a sex offender is one year in prison and the maximum is seven years in prison[12].

In addition, in California, both employers and employees are required to comply with provisions on harassment. The law here requires employers to take reasonable steps to prevent harassment. If employers fail to take such steps, they may be held liable for harassment. It can be seen here that not only the person who commits the violation is responsible for his/her acts, but the employer also has a great responsibility to prevent sexual harassment[13].

Third, the order and procedures for disciplinary dismissal of violating employees are not guaranteed

Compared with Labor Code 2012, Labor Code 2019 has stricter and more complete regulations to protect employees from sexual harassment at the workplace as well as handle those who commit acts of sexual harassment in the workplace. However, even with new regulations, this problem is still controversial, because:

It is required in Labor Code 2019 that the employer has to issue and publicize the internal Labor Regulation if employing 10 or more employees, in which the prevention and control of sexual harassment at the workplace and the order, procedures for dealing with harassment in the workplace is one of the main contents must be stipulated in it. This is an open regulation for employers in promulgating Labor Regulations, but it will also be an inadequacy. It will be difficult for the employer to issue the order and procedures to handle the atcs of sexual harassment in the workplace since this is a new issue leading to that employers do not always identify the right violations to handle. In case the identification is incorrect, the handling of violations is also wrong, leading to unnecessary complaints arising in the labor relation.

That the employee shall be dismissed for the acts of sexual harassment in the workplace is one of the new cases in which the employer may applied the penalty of dismissal as stipulated in Labor Code 2019. This regulation aims to "eliminate" those who commit sexual harassment from working environment to create a healthy, harmonious and stable working environment. However, it is not enough if dismissal is imposed to the case of sexual harassment behavior specified in the Labor Regulations. Sexual harassment is a prohibited act in the workplace, which has been regulated by the Labor Code 2019. However, in reality, not all businesses and organizations issue Labor Regulations, especially those where there 10 employees either promulgated but the contents of the Labor Regulations are incomplete or do not follow the prescribed order and procedures.

Assuming, the employer does not promulgate the internal Labor Regulation or it is not mentioned in the Labor Regulation about the handling of sexual harassment at the workplace, will the violator be disciplined for dismissal? Therefore, the content of the Labor Regulation must be in line with reality and must uphold the urgency of preventing and combating sexual harassment in the workplace. If all acts of sexual harassment at the workplace will be handled at least as a disciplinary action in the form of dismissal without having to compare it with the Labor Regulation, the protection of victims of the act of harassment will be more comprehensive and thorough.

In short, Labor Code 2019 is a new legal frame to protect the employee from sexual harassment at the workplace strictly and thoroughly, in comparison with Labor Code 2012. Thereby, the employer and relevant agencies have a basis to identify violations in order to handle and apply appropriate and timely sanctions to ensure a healthy and positive working environment. However, as analyzed above, there are many shortcomings in Vietnamese law in proving sexual harassment in the workplace as well as sanctions for handling this behavior. Therefore, to improve the laws, the author makes a number of legislative recommendations as follows:

Firstly, it is necessary to soon adjust and change the level of administrative penalties for those who commit the acts of sexual harassment at the workplace. At the same time, it should be supplemented that the employer is also a subject to administrative sanction in case where he/she knows for must know such acts of harassment but do not take immediate appropriate action to prevent the behavior.

Secondly, “Sexual harassment” shoule be considered a crime so that the violator shall face criminal prosecution. Then, the deterrence and prevention will be guaranteed.

Thirdly, it is necessary to issue legal documents guiding specific and detailed instructions on the order and procedures for disciplinary handling and dismissal of persons who commit acts of sexual harassment in the workplace so that they can be used as a basis or a ground as well as the Labor Regulation. Thus, sexual harassment in the workplace will be dealed with and prevented in an appropriate and correct way.

Fourth, the condition "stipulated in the Labor Regulation" should be removed when considering the application of the dismissal discipline to an employee who commits sexual harassment in the workplace because this behavior has been clearly stipulated in the Labor Code 2019 and needs to be prevented and handled promptly.