International Workplace Harassment Prevention: Legal Requirements & Global Training Best Practices

International Workplace Harassment
Prevention
Legal Requirements & Global Training Best
Practices

February 15, 2012

Confidential For Discussion Purposes Only

Reid Bowman, Esq.

• General Counsel of ELT.

• Over 25 years of HR and
labor & employment law
experience, primarily working
with multi-state employers.

• Designs strategic ethics,
wage & hour, discrimination
prevention, and employment
law compliance programs.


Margaret Hart Edwards, Esq.

• Margaret Hart Edwards is a
shareholder of Littler Mendelson,
San Francisco office.
• Represents multi-national
employers, past member of US
delegation to International Labor
Conference

• Widely published article and book
author, frequent presenter on
critical employment law subjects.


Agenda

• Why is this issue important

• A benchmark: US law

• Overview of International Harassment
prevention laws, including key differences
from US law.

• Best practices for international
workplace harassment prevention


Harassment a Worldwide Issue

One in 10 employees surveyed in 22 countries
around the world indicate that they’ve been
intentionally physically assaulted out of anger on the
job by a co-worker or manager during a workday
(7%), while another (9%) say they’ve been harassed
on the job for sex by a senior person simply because
they work for them and not because they want a true
relationship.

Source: The Reuters/IPSOS Poll on Assault and
Harassment in the Workplace (August 2010)

Confidential For Discussion Purposes Only 5

Global Trends – Workplace Harassment

6 Confidential For Discussion Purposes Only

And This Means...

• Ever-increasing
importance of the
Personnel, Human
Resources, and
Employment Law
functions within any
global organization.


A Question For You
Does your organization
currently provide any
workplace harassment
prevention training to
employees working outside the
US?
 Yes, to all International
Employees
 Yes, but just in certain
countries
 Not yet, but we are
considering it
 No


U.S. Law


U.S. Federal Law

Title VII (1964)
Faragher and Ellerth (1998)
• Economic and
Environmental Harassment

• Workplace Harassment vs.
Sexual Harassment

• The Affirmative Defense
 Policy
 Education

• Train Everyone Periodically


U.S. Supreme Court Decision

Kolstad (1999)
• Workplace discrimination
training (not just
harassment)

•Punitive damage defense

•Good faith efforts to
educate all managers on
basic anti-discrimination
principles, or ―Title VII‖

• Policies are not enough


1999 EEOC Enforcement Guidelines

―[T]he employer should provide training to
all employees to ensure they understand
their rights and responsibilities [concerning
workplace harassment]…
Source: Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors (6/18/99)


State laws: ME (‘91) and CT (‘93)
ME requires employers:
• With 15 or more employees;
• To conduct sexual harassment
training for all new employees;
• Within one year of employment
commencement.

CT requires employers:
• With fifty or more employees;
• To provide two hours of sexual
harassment training;
• To all supervisory employees;
• Within six months of the
assumption of a supervisory
position.

California
• Requires employers who do
business in California, and who
have more than 50 employees,
to provide 2 hours of high
quality, ―interactive‖ harassment
training to all supervisors.
• Training must be repeated every
two years.
• Newly hired or promoted
supervisors must be trained
within six months of the
assumption of a supervisory
position.


International Law

15

A Question For You
Does your organization have
different harassment prevention
polices for U.S. and
international employees?

 Yes, we use different
policies
 No, we use one policy
 I don‘t know


Sources of Anti-Harassment Law
• International treaties addressing fundamental rights
• In the 27 states of the European Union:
• Charter of Fundamental Rights of the European
Union
• Numerous Directives against discrimination
• Member countries must implement directives
with legislation
• Growing body of case law, including European
Court of Justice


Harassment More Broadly Defined
• Prohibited harassment is
not just a form of
prohibited discrimination
• Prohibited harassment
may include repeated
behaviors that have an
adverse affect on the
dignity of the person
• As focus on sexual
harassment, need to
keep this larger principle
in mind


Moral Harassment
• Article L. 122-49 of the French Labor Code provides that:
• [E]mployees must not be victims of repeated moral
harassment aiming at damaging working conditions likely
to alter their rights or dignity, mental or physical health or
to compromise their professional future.
• Employees cannot be sanctioned, dismissed or be
subject to a direct or indirect discriminatory measure for
having been subject or having refused to be subject to
harassment from any person or having attested or
recounted the facts described above.


―Malevolent Employer v. Bad Employee‖
• Moral Harassment recognized
under French Law (Art. L. 1152-1
of the Labor Code)
• ―Acts that result in degradation of working
conditions . . . undermine
his rights and dignity‖
• No need to prove intent to harm
• Employer had the burden of proof after employee
makes prima facie case


Sexual Harassment
No employee or applicant for a job, work placement or
training course may be sanctioned, dismissed or
subjected to any act of discrimination as a result of being
subjected to or refusing to be subjected to acts of
harassment ―by any person whose object is to obtain
favours of a sexual nature for his own or another‘s
benefit.‖

Law 2002-73 (Jan. 17, 2002)


France
• Employers have a duty to protect the physical and
mental health and safety of employees, and must
prevent sexual harassment at work.

• There is less emphasis on written policies against
harassment, and more on punishing harassment.


Enforcement
High Authority Against Discrimination and for Equal
Treatment
• Since 2004, France has fought discrimination through the High
Authority against Discrimination and for Equal Treatment (―HALDE‖),
a governmental agency akin to the U.S. Equal Employment
Opportunity Commission (EEOC), but with much broader powers
beyond employment.
• HALDE has the duty of fighting discriminations prohibited by law, to
provide any useful documents to French citizens, to support and
accompany victims of discrimination, to identity and promote good
practices to encourage equality, and to investigate violations.


Is There Individual Liability for Harassment?
• Yes. Pursuant to case law, the employee who is guilty of
harassment is personally liable and can be sued by the
victim before Civil Courts in order for the victim to have his
or her moral damages compensated.
• In addition, the guilty employee can be subject to a
disciplinary sanction by the employer.
• Harassment is punished criminally by a EUR 15,000 fine
and one year of imprisonment.


Prohibitions Against Harassment
• Harassment on grounds of sex, race, disability, religion
or belief, sexual orientation or age is recognized as a
form of discrimination.
• Harassment is unlawful even if it is not based on the
sex, race, etc. of the victim. ―Stalking,‖ bullying and
intimidating conduct of a physical or verbal nature might
be covered.
• Employers may be vicariously liable for harassment
perpetrated by their employees.


UK – Sexual and Sex Harassment
• Unwanted conduct of a sexual nature, or related to
sex or gender reassignment that has purpose or
effect of either violating EE‘s dignity or creating an
intimidating, hostile, degrading, humiliating or
offensive environment.
• Harassment by less favorable treatment because of
rejection of or submission to conduct that is sexual
harassment.


UK – Employer Duties
Employer may have defense to liability if:
• Has good policies in place
• Makes employees aware of policies and implications
• Trains managers and supervisors on equal
opportunities and harassment
• Takes steps to deal effectively with
complaints, including appropriate discipline


Special UK Guidance
• Statutory Code of Practice of Equality and Human
Rights Commission interpreting Equality Act 2010
taken into account by courts.
• 2009 Acas Code of Practice on Disciplinary and
Grievance Procedures sets forth means to complain,
investigate, and discipline. Tribunals adjust
compensation awards up to 25% for unreasonable
failure to follow Acas Code.


Prohibitions Against Harassment
• Sexual harassment in the workplace is any
unwanted sexual conduct that harms the dignity of
the employee in the workplace.
• Sexual harassment may be punished under criminal
law if it constitutes ―insult‖ (intentionally degrading),
―abuse of position of trust,‖ ―sexual assault,‖ ―sexual
coercion‖ or ―causing bodily harm.‖


Other Approaches to Harassment
• ILO Convention No. 111 concerning Discrimination
in Respect of Employment and Occupation.
• 169 countries adhere to this treaty, which requires
the countries implement its terms as a ―floor‖ in
legislation.
• Example: Russia
• Creation by case law: India Supreme Court decision
in Vishaka v. State of Rajasthan


Other Examples
• China (PRC) prohibits sexual harassment, but only
as to women.
• South Africa‘s Amended Code of Good Practice on
the Handling of Sexual Harassment Cases in the
Workplace suggests appointing a trained counselor
to advise those who think they are victims, to give
extra sick leave to victims of serious harassment,
and trauma counseling


Other Approaches
• Implementation of constitutional guarantees of rights to
equality at work and a safe working environment as a
means of personal fulfillment – Peru, Venezuela
• Prohibitions on harassment may extend to members of
the employee‘s family – Turkey
• Law may require employer to have ―Internal Rules of
the Company‖ to respect the dignity of employees,
covering harassment - Chile


Familiar Protected Categories

• Age
• Race
• Color • Pregnancy or maternity
status
• Gender
• Genetic information
• Sex
• Sexual orientation
• Nationality or nation origin
• Gender identity or gender
• Disability (mental or expression
physical)
• Ancestry
• Religion (including
• Immigration status
nonreligious beliefs and
nonbeliefs) • Marital or same-sex partner
status
• Union membership


Different Protected Categories
• Social origin
• Property ownership
• Birth
• Caste
• Language spoken
• Parental status
• Political beliefs
• World view
• Criminal convictions
• Alcohol or drug abuse
• Migrant worker status
• Culture


Social Origin Harassment

Harassment (such as making comments,
ostracizing, or humiliating someone)
because of:
• Social class into which a person is born
(most often a lower class)
• Where they live
• The fact that they speak a different
dialect
• Economic status (rich/poor)
• Family background


Mobbing & Bullying

• General harassment - may not
be tied to a protected category

• Co-workers, subordinates and
superiors can engage in it

• Common behaviors:
rumor, innuendo, intimidation,
humiliation, discrediting, and
isolation


Retaliation

Also know as reprisal or victimization


Prohibitions on Retaliation
• Antidiscrimination legislation in each jurisdiction
prohibits ―victimization‖.

• In general, defined very broadly to include subjecting
individuals to ―any detriment‖ because they have
made a complaint, intend to make a complaint or
have given evidence in antidiscrimination
proceedings.


• Dutch law prohibits victimization of employees and
those who assist them with a discrimination
complaint.

• Protected against dismissal or other adverse
treatment by the employer as a reaction to a
complaint on the basis of discrimination.


Japan ‗s Ministry of Health, Labor and Welfare
issued guidelines requiring employers to
establish a policy to prevent retaliation against
female employees who make sexual
harassment complaints.


Discrimination and Harassment in Italy: Third
Parties‘ Role
• Recent Italian Supreme Court decision allows third
parties to pursue discrimination and harassment cases
on behalf of employees (April 2009)
• Created the ―Equal Opportunities Adviser‖: member of
the regional and central employment commission.
Appointed by the Minister for Labour
• Goal is to foster principles of equal treatment for men
and women in employment matters


Italy
• Where allegations of harassment exist
(unwelcome touching, comments, etc.),
the Equal Opportunities Adviser can claim
damages in court as an injured party

• Collective action allowed on behalf of group of
employees

Decision 16031 (by Italy’s Supreme Court),
April 16, 2009.

Similar Rulings

• The decision follows Court´s earlier ruling (February,
2008) that trade unions may seek compensation in their
own right if an employee is a victim of sexual violence in
workplace


A Question For You
If your organization provides
workplace harassment training
to workers outside the U.S., do
you:

 Use the same training as
is used with U.S. based
employees
 Use different training with
overseas workers


The Challenge in Training Overseas

• Variations in laws
• Multiple Global Stakeholders
• Cultural differences
• Different learner sensibilities
• Possibility of Multiple Policies


Best Practices

• Don‘t roll out a U.S.
centric training course

• Anchor the training with a
great policy

• Be conscious of Works
Councils

• Set expectations and
engage Management
stakeholders early


Best Practices (Con‘t)
• Focus on deploying the
training, not on
creating the content

• Cover issues that are
important outside the
U.S.

• Ensure that training is
engaging—both in
content and visual
elements

Confidential For Discussion Purposes Only 47

Best Practices (Con‘t)

• Train on retaliation
(Victimization & Reprisal)

• Distribute the right policy &
track completion

• Consistency matters – avoid
opt outs


A Question For You
If your organization provides
harassment prevention training
outside the U.S., how is training
delivered?
 Online
 Live
 A combination of online
and live
 I don‘t know


ELT’s International Workplace
Harassment Course
Topics Covered:

• Sexual and other forms of
prohibited harassment
• Retaliation
• Bullying and moral harassment
• Stereotypes
• Obligation to report suspected
misconduct
• Organization-specific reporting
procedures and policies
• Responsibility to respond to and
help prevent harassment
• How to properly handle
complaints (for managers)


A Question for You…

If your organization may be interested
in purchasing ELT‘s online training
solutions, and you would like an ELT
Sales Executive to follow up with you,
type "YES" in the box below.


Interested in our solutions?
info@elt.com
www.elt.com │ 877.358.4621

Additional substantive questions?
mhedwards@littler.com
rbowman@elt.com


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