U.S. ‘Zero Tolerance’ Anti-Harassment Policies Need Global Tweaking

By Donald C. Dowling Mar 12, 2013

U.S. multinationals proactively ban illegal harassment across their operations worldwide. But the radically different harassment landscape outside the U.S. seriously complicates global anti-harassment rules and training.

Harassment Law in the United States

Over the past few decades, American workplace harassment law has evolved into the most intricate body of harassment jurisprudence in the world. U.S. federal and state court decisions in harassment cases now construe concepts as esoteric as a “tangible employment action requirement for vicarious liability” in quid pro quo harassment, an “affirmative defense of unreasonable failure to take advantage of preventive or corrective opportunities,” a “severe and pervasive requirement for hostile environment harassment” and claims of “implicit quid pro quo third-party harassment.”

These esoteric harassment law doctrines evolved in U.S. court decisions even though the texts of U.S. statutes tend not even to prohibit workplace harassment. U.S. federal harassment prohibitions are judge-made extensions of statutes that nominally prohibit only discrimination. Even the U.S. Equal Employment Opportunity Commission defines “harassment” as “a form of employment discrimination.” Therefore, harassing behavior in the American workplace tends to be actionable only to the extent it is a form of discrimination. Nondiscriminatory harassment—sometimes referred to as bullying, pestering, abusive work environment or equal opportunity harassment—tends to be perfectly legal stateside.

Harassment Law Abroad

In contrast to the tough, well-evolved but narrow American stance against workplace harassment, the harassment-law landscape overseas differs greatly.

Singapore imposes no specific laws banning workplace harassment. Countries such as China and Russia may ban harassment on paper, but they tend not to offer workplace harassment victims many tough precedents or readily enforceable remedies.

In 1997 India’s Supreme Court banned workplace sex harassment, but women’s rights advocates say India has a long way to go in enforcement. The Netherlands and Luxembourg impose tough bans against workplace harassment, but confounding case law in these jurisdictions actually supports proven sex harassers—labor judges in these countries can be quick to hold dismissal too severe a punishment for a proven sex harasser, particularly a long-serving executive with a relatively clean prior discipline record.

Meanwhile, common-law countries impose tough anti-harassment rules broadly consistent with the U.S. model. All European Union states now impose laws that prohibit certain harassment, and awareness is spreading.

Countries such as France and Egypt have criminalized certain types of harassment—France re-enacted its sex harassment criminal law in 2012. Under a 2006 Algerian law, anyone who “exert[s] pressure to obtain sexual favors” in Algeria faces two to 12 months in prison plus a fine of up to 200,000 dinars (U.S. $2,540).

These days even Shari-ah law gets interpreted to criminalize workplace sex harassment—in October 2010, a judge in Arar, Saudi Arabia, sentenced a sex harasser to death. The Saudi harasser had tried to blackmail a government employee at her workplace with revealing photographs, but she denounced him to the Saudi Virtue Police.

As countries overseas get serious about stopping workplace harassment, their harassment laws mutate into new forms, some even broader (if less nuanced) than counterpart U.S. doctrines. Unfortunately, these growing differences leave our state-of-the-art American tools and training for weeding out the U.S. variety of workplace harassment increasingly less helpful overseas. So any multinational trying to foster a harassment-free workplace internationally these days needs subtlety, nuance, strategy and finesse. Reflexively extending the rigid American “zero tolerance” approach around the world does not work.

Toward a Global Approach

Multinationals pursuing a global approach to eliminating harassment from their worldwide workforces need to account for the international context by factoring in seven issues: alignment; protected status; affirmative mandates; policy drafting; launch logistics; communications/training; and investigations.

Alignment. A multinational must align any global approach to eradicating workplace harassment with its own approach to preventing workplace discrimination and promoting equal employment opportunity. Be sure a global harassment policy and international harassment training, as well as a cross-border anti-harassment enforcement initiative, dovetail with the multinational’s global initiatives as to discrimination and diversity. Tackle these three related issues together, not in isolation.

Protected status. Because American-style prohibitions against workplace harassment grow out of U.S. statutes that prohibit workplace discrimination, American employers’ harassment policies and training tend to ban only status-based harassment linked to a victim’s membership in a protected group—sex harassment, race harassment, disability harassment, age harassment, religious harassment, even theoretically veteran status harassment and genetic harassment. To date, not too many U.S. domestic employers have taken the bold step of imposing tough, enforceable workplace rules that ban status-blind harassment—bullying, pestering, equal opportunity harassment. A trend may be emerging at the U.S. state government level to outlaw so-called “abusive work environments,” but state proposals here so far have little traction.

By contrast, many other countries already prohibit infinitely broader status-blind harassment abroad called workplace “bullying,” “mobbing” “psycho-social harassment,” or “moral harassment,” without regard to protected group status.

A Belgian law of June 2002 prohibits workplace “pestering.” A French law of June 2010 criminalized “psychological violence.” A Luxembourg law of June 2009 prohibits “bullying and violence at work.” Venezuela’s 2005 “Organic Law on ... Work Environment” prohibits “offensive, malicious and intimidating” conduct in the workplace, including “psychological violence” and “isolation.” And mushrooming case law in Brazil imposes damages for workplace “moral harassment”—a common claim in all sorts of workplace disputes. In Brazil these days, even employers that legally assign and legally pay overtime have faced “moral harassment” litigation from overworked employees arguing the extra hours amount to a form of bullying.

In theory, status-blind foreign harassment laws are infinitely broader than American-style status-based harassment prohibitions: A doctrine that bans abusive behavior for whatever reason is infinitely broader than a targeted American-style rule that prohibits only harassment motivated by a dozen or so protected traits. For a multinational, the challenge here is how to factor these broad foreign status-blind harassment laws into a feasible global workplace anti-harassment policy and training module. Expanding a U.S.-style harassment policy, and training, to account for status-blind foreign harassment prohibitions requires exponentially increasing its scope, and this expansion makes U.S. employers uncomfortable, especially if the broadened policy and training will reach into U.S. workplaces. Too many U.S. multinationals downplay this conflict and simply issue overly narrow international policies that merely ban status-based harassment. But this approach blows a huge hole in the multinational’s international harassment compliance initiative because the employer’s internal harassment prohibition bans much less than all illegal harassing behavior.

Affirmative mandates. Every law against workplace harassment imposes a negative prohibition against employers (and often co-workers) who commit illegal harassment. In addition, some jurisdictions’ laws go farther and impose affirmative employer duties or mandates as to harassment compliance. Multijurisdictional harassment initiatives (policies, training, enforcement) need to account for these. A global policy that merely bans illegal harassment does not go far enough in a jurisdiction where employers have to take affirmative harassment compliance steps.

For example, like California, South Korea requires employers to offer periodic training on sex harassment. Chile, Costa Rica, India, Japan and other countries affirmatively require employers to issue written sex harassment policies. The Austrian Supreme Court requires employers affirmatively to investigate complaints of sex harassment, as do statutes in countries including Chile, Costa Rica, India, Japan, South Africa and Venezuela. Costa Rica requires employers to institute sex harassment claim procedures and to report each sex harassment claim to the Ministry of Labor Inspection Department. A 2006 Japanese regulation imposes similar affirmative mandates. In addition, some jurisdictions’ harassment laws, such as China’s Special Provisions on Occupational Protections for Female Employees of April 2012, affirmatively require that employers provide a “harassment-free workplace.” But in practice, mandates of harassment-free workplaces differ little from simple negative prohibitions against harassment.

Policy drafting. In drafting a multinational’s cross-border anti-harassment policy (or code of conduct provision), be sure the policy mandates will actually work overseas. Reject American-style prohibitions that are unworkable abroad. To do this, define key terms cross-culturally and ensure the policy’s explicit prohibitions are enforceable in each affected jurisdiction.

Workplace harassment policies implicate concepts that are stubbornly susceptible to being misconstrued abroad. Be sure to be clear. For example, the common harassment policy terms “inappropriate” behavior and “improper” touching get interpreted very differently depending on cultural context—some behavior obviously “inappropriate” or “improper” in Atlanta or Milwaukee may not seem so out of line in Athens, Riyadh or Mexico City.

“Kissing,” prohibited by many U.S. harassment policies and training modules, usually implies romantic mouth-kissing without distinguishing the cheek-kissing common among co-workers in many countries. Even the term “harassment” itself takes on very different meanings abroad. In Brazil, “harassment” is understood to mean overt and abusive acts like bullying and quid pro quo harassment and therefore does not reach “hostile environment” harassment. For that matter, employees abroad are not likely to understand even basic U.S. harassment terms of art like “hostile environment” and “quid pro quo” harassment.

Ensure the policy’s explicit prohibitions are enforceable in each affected jurisdiction. A harassment policy’s specific restrictions may raise legal issues abroad. Be sure policy prohibitions are enforceable overseas. For example, again we have the “kissing” problem: The common U.S. harassment policy provision prohibiting on-job “kissing” is unworkable in places like France where men and women co-workers kiss one another every morning as a greeting. Also, restrictions against co-worker dating raise serious privacy law issues and spark human resources challenges overseas, especially in countries such as Germany and Switzerland where birth rates are low and a third to half of married couples are believed to have met in the workplace. Society in these countries actually sees workplace romance as vital to sustaining the local population base, and so local employees and even courts push back hard against American-style co-worker dating restrictions (or at least passive-aggressively ignore them). In these jurisdictions, even a workplace rule that merely requires dating co-workers to disclose their relationships almost always offends. In one extreme case, a Russian judge confirmed a worker’s sex harassment allegation as true but nevertheless denied her claim, reasoning that “if we had no sexual harassment, we would have no children.”

Launch logistics. Be sure to launch a cross-border harassment policy so that it complies with overseas procedures for implementing new work rules. Every harassment policy imposes a discipline or termination sanction, but as we have seen, many jurisdictions get surprisingly lenient when an employer invokes an anti-harassment policy to fire a harasser for good cause—so the policy needs to stick.

Harassment policies are work rules that can be subject to mandatory “information and consultation” with works councils and health-and-safety committees or mandatory bargaining with unions. Launching a new harassment policy may also require tweaking lists of local work rules, such as the rules required in France, Japan and Korea. And any harassment policy that imposes a mandatory disclosure rule—such as a rule requiring dating co-workers to disclose their relationships—can trigger employment and data privacy law challenges.

Communications/training. A multinational implementing a global harassment policy should communicate its policy to employees abroad and then train on how it works. But never directly export U.S. online or live harassment training modules around the world. Training about sex harassment, in particular, raises unique cultural challenges in places where harassment remains poorly understood. Foreign workers, male and female alike, have mocked U.S.-generated sex harassment and gender-sensitivity training. In recent years, overseas workers may have become superficially more accepting of these training sessions, but many overseas employees forced to sit through harassment modules may still see this as a puritanical American exercise irrelevant to their local environment. Indeed, in some pockets of the Arab world, Africa, Asia, Latin America and Eastern Europe, a workforce may openly scoff at training seen as too awkward, too “politically correct” and too insensitive to the local environment.

For example, at a February 2013 sex harassment training session at Chinese manufacturing giant Foxconn, one “18-year-old female worker” was “often”—during the sex harassment training session itself—“subjected to obscene gestures and sexual harassment from three male colleagues.” So tailor anti-harassment communications and training for local audiences. Tone down messages likely to ruffle local feathers. Make the case for why harassment is a local problem. Show how harassment rules can work locally to improve local conditions.

Investigations. U.S. employers understand the importance of thoroughly investigating credible harassment complaints, allegations and denunciations received both informally and through reporting channels like hotlines. Indeed, as already mentioned, law in Austria, Chile, Costa Rica, India, Japan, South Africa, Venezuela and elsewhere affirmatively requires employers to investigate allegations of sex harassment. But even in these countries, an aggressive American-style workplace harassment investigation can trigger push-back and unexpected legal issues. So adapt overseas harassment investigations (and discipline for proven harassers) to comply with host-country rules and culture.

While a U.S. organization with “zero tolerance” for workforce harassment will be understandably reluctant to allow any harassment in its overseas operations, the concept of what behavior constitutes intolerable harassment may need some flexibility to accommodate very different local foreign conditions.

Donald C. Dowling is a partner in the New York office of White & Case.

Republished with permission. © 2013 White & Case. All rights reserved.

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