On February 11, 2013, I went to Miriam College along Katipunan Avenue; particularly to their Environmental Studies Center at the Environmental Studies Institute; as I was invited to talk about Sexual Harassment in the Philippine Workplace in front of junior and senior Business Administration students of the College of Business, Entrepreneurship and Accountancy. This seminar was organized by the college’s Business Administration department’s student organization, Inter-School Business Administration or IBA.
There, I helped the participating students know and understand how Sexual Harassment in the Philippine workplace is defined based on both its dictionary and legal meanings. Also, I explained to them the provisions of the Sexual Harassment Act of 1995, a.k.a Republic Act No. 7877, and what they say about how to deal with circumstances classified as an act of sexual harassment. Lastly, I gave them a lesson about what to do next in case they are harassed in the future or better yet prevent or keep acts of sexual harassment, whichever they are or however they are done, from being committed to them.
In this blog for today, we will talk about the essentials of this topic in accordance with what the Anti-Sexual Harassment Act of 1995 says.
To begin with, Sexual Harassment has both its dictionary and legal definitions. According to Merriam-Webster, it refers to the uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate (as an employee or student). On the other hand, the local law (R.A. No. 7877) defines it as the following:
SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by 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.
Ergo, based on the two definitions, Sexual Harassment can only be considered as such if or when the offender is someone in authority or who has a direct or indirect governing or controlling influence over another who is a subordinate. This means that a peer-to-peer case or a subordinate-to-supervisor case is not considered as one or might be categorized under a different law.
However, is the sexual favor that is being demanded, requested or required only limited to inviting the subordinate to have a sexual intercourse with the superior? No. When we say sexual, it does not only involve the act itself but also includes anything that has to do with or related to the reproductive organs or a behavior, which is sexually motivated or has sexual desires. What can be derived from here is that even a dirty joke that was not accepted well, an uncalled for remark that did not come across funny to the recipient, or any of the superior’s body parts brushing over the body of the subordinate whether intentionally or not and was interpreted by the latter as sexually motivated can be considered as an act of sexual harassment.
What are the different forms of Sexual Harassment then?
There are different forms of sexual harassment. Number one is physical. This includes but not limited to malicious touching or otherwise known as act of lasciviousness, very obvious sexual advances, and gestures (facial expressions, body language, hand gestures, and even other bodily movements) with lewd connotations.
The other one is verbal. This includes requests or demands for sexual favors (having sex, asking for a kiss, or requesting to be hugged) and lurid remarks that have malicious intent in them.
And the last one would be use of objects, pictures or graphics, or written notes with sexual underpinnings or influences. Let me give an example. Let us say a supervisor jokes around with his female subordinate saying that his penis is as big as the ruler he is holding, while showing it to the latter, and then the employee gets offended by such a dirty joke; she can actually complain about her boss and file it as an act of sexual harassment. Another example is let us say a supervisor is holding an FHM magazine with a sexy celebrity on the cover page and suddenly cracks a joke with his female subordinate saying they have similarities after saying he fantasizes over the model; then the female employee can complain about it especially if she feels insulted or abused. It would appear to her that the mere fact he is saying they have similarities is like he is saying he also fantasizes over her. Are you with me so far?
Now, at this point, let us talk about what the Anti-Sexual Harassment Act of 1995 says about our subject matter.
According to it, getting the information from Sections 2 and 3, the following individuals are covered by this legislation:
1. Workers or employees (both public, private or even non-government/non-profit)
2. Applicants or candidates for employment
4. Those undergoing training, institution, or education other than students
Who can be punished or can be held liable by this act?
1. Employer of the company or head of the department/division
2. Employee who belongs to a level higher than that of the subordinate
3. Immediate manager or supervisor
4. Agent of the employer
5. Anybody else who has authority, influence or moral ascendancy over the offended
6. Any person who directs or induces another to commit any act of sexual harassment
7. Any person who cooperates in the commission of the act by another without whom it would not have been committed.
8. College or university professor/instructor
Where is this decree applicable?
3. Any other place of training, institution, or education
When is Sexual Harassment committed?
To talk about this accurately, we would have to refer to the exact (word-for-word) provisions of the Anti-Sexual Harassment Act of 1995.
(a) In a work-related or employment environment, sexual harassment is committed when:
1. 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 of 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;
It is very clear here that this law is applicable even to applicants or candidates for employment. An employer or recruitment personnel shall never make any sexual favor or attempt a sexual advance in exchange for hiring anyone, putting one back on the job, or regularizing/certifying a probationary employee. It also says here that no sexual harassment shall be made as a condition for increasing ones salary, promoting him/her or enhancing his privileges and benefits. The part where it says “limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities” refers to demoting an employee, assigning him/her to a department where he/she would perform less, or negatively influencing his/her co-workers to distance themselves from the person. On the other hand, the portion “otherwise adversely affect said employee’ pertains to a situation in which because of the incident of sexual harassment, the employee is eventually traumatized or feels little about himself/herself.
(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or
In case an employee will not get what he/she deserves or what he/she signed up for based on the job offer or what the labor code mandates if he/she will not submit to the sexual favor demanded, requested or required by employer or the recruiter, it also falls as a commission of sexual harasment.
(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
This further explains the part where it says “adversely affect the said employee”. If, because of the commission of the sexual harassment, the employee ends up feeling uncomfortable or awkward reporting in the workplace; or people around him treat him/her differently to the point of alienating him/her; the same act has been committed without a doubt.
(b) In an education or training environment, sexual harassment is committed:
(1) Against one who is under the care, custody or supervision of the offender;
This means that those that can be punished, if found guilty, are not just the immediate teacher of the sexually-harassed but the school administrator, guidance counselor, principal or any other officials for as long as they have control or influence over the students and have done them wrong.
(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
(3) 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 consideration; or
(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.
What to do next once victimized?
1. Well, first of all, the victim has to come out and complain first. A lot of cases of sexual harassment are left unattended to or forgotten because most of the victims are not courageous enough to stand up for their rights and complain about their offender. Thus, the offended must tell the trustworthy authorities about their experience and let the due process and justice take it from there.
2. Next, let your immediate supervisor know that you were harassed except of course if the person in question is himself/herself. When this happens, common sense says, that you skip level or bypass the person and go to next level or path of escalation who is that person’s own boss.
3. What if your boss’s immediate superior is not doing anything to help you with your case or is siding with your immediate supervisor? Usually, this happens when the former is very close to the latter. In cases like this, you skip them all together and you just go straight to Human Resources particularly the Employee Relations department and let them take care of everything.
4. From this point onwards, of course, Human Resources will follow its Discipline Management/Employee Issue Resolution process with the necessary coordination with all the people involved or responsible. You just need to follow their lead, do as they say and hope that your case is in good hands, of course.
What is your employer’s involvement in all this?
Your employer or division’s head has a couple of duties in issues like this according to the law. They are the following:
1. Proactive Approach – to prevent or deter the commission of acts of sexual harassment.
2. Reactive Approach – to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment.
Now, in order to attain these ends, your employer shall:
(a) Promulgate appropriate rules and regulations in consultation with and joint1y 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.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.
The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
These so-called appropriate rules and regulations may include but not limited to guidelines in proper decorum in the workplace, employee code of conduct which is usually explained during onboarding orientations, and other related internal or client-provided policies. On the other hand, the procedure for the investigation of sexual harassment cases and administrative sanctions are commonly provided by or stipulated in the company’s discipline management or grievance procedures.
Your employer’s next obligation is:
(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee 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.
In private companies, this committee is usually referred to as either the grievance committee, the employee relations department, or the strategic business unit/HR business partner.
Last but not least would be:
SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. – The employer or head of office, educational or training institution shall 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.
It did not really specify in this section of the law which specific damages these are. Thus, it means it is safe to assume that this encompasses the following:
- Financial damages thru monetary settlement
- Emotional/Mental/Psychological damages that can be provided thru company-provided counseling, referral to an agency offering professional help, or any other advice or option available.
Now, one other interesting question to answer here is, Can the victim pursue independent actions for the damages and not just rely on the company’s final verdict or administrative sanctions?
The answer is yes. Section 6 of the Republic Act 7877 says that:
SECTION 6. Independent Action for Damages. – Nothing in this Act shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action for damages and other affirmative relief.
Ergo, my advice is that if you are not contented or happy with the administrative sanctions served to your offender by the company for the act of sexual harassment committed to you and you believe the person deserves more, then you have the right to take your case to the court and have your public attorney/private lawyer handle everything for you given their knowledge and expertise.
Now, what are the companies’ common sanctions or disciplinary actions for acts of sexual harassment?
Well, each company has its own code of conduct, especially for offenses against proper conduct and decorum, which an act of sexual harassment is usually classified under. This means that they may have different provisions as to what the corresponding punishment is depending on the degree of gravity of the infraction. However, below is a generic set of sanctions or discplinary actions most companies apply or refer to:
1st offense – Second to Final Written Warning with Counseling or Reprimand
2nd offense – Fine or preventive suspension not exceeding thirty (30) days
3rd offense – Dismissal
Less Grave offenses:
1st offense – Fine or preventive suspension not exceeding thirty (30) days but not exceeding six (6) months
2nd offense – Dismissal
Grave offenses – Final Written Warning to Dismissal
And, how are the violators be punished by law?
Once proven guilty, the offender may face or be responsible for the following:
“A VICTIM REMAINS AS SUCH ONLY UNTIL HE/SHE LETS JUSTICE BE SERVED BUT BECOMES AN ETERNAL FOOL IF SHE DENIES HERSELF OF IT.”
If you are interested in inviting the expert, Myron Sta. Ana (The Rising Star in Multifaceted trainings and learning and development consultancy and the Next Big Name in motivational speaking and events hosting) in your school or organization to talk about this topic and a lot more, just email him @ Myronosophies@hotmail.com/Myron.S.Sta.Ana@hotmail.com or text/call him at 0927-351-9391 / 368-3214.