Global Obstacles Deter Sexual-Harassment Prevention

 

Jathan Janove, J.D. By Jathan Janove, J.D. October 1, 2019
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​When employees in other countries are sexually harassed, what obstacles stand in the way of making the employer pay for the worker's suffering due to harassment?

A big challenge for victims is that while laws differ from country to country, an individual accused of harassing a co-worker usually has strong employment-based rights, according to Bonnie Puckett, an attorney in Atlanta who leads Ogletree Deakins' Asia-Pacific practice. Puckett explained that in many countries, employees—including those accused of misconduct—can be fired only for a "valid reason." If he or she is fired without a valid reason, the employee can challenge the dismissal and obtain a reinstatement order.

"In many countries, what constitutes a valid reason is very limited," she said. "For conduct-related terminations, many statutes require that the conduct be egregious, and that the employer meet a very high standard of proof to establish that the behavior occurred."

Due-Process Rights

People accused of harassment often are protected by many procedural due-process rights.

Depending on the country, these rights can include:

  • Allowing the target of an investigation to have representation during interviews with the employer.
  • Mandating that names and specific allegations be disclosed upfront.

Puckett said these entitlements allow harassers to threaten and intimidate victims, who are often terrified of retaliation or social ostracism.

India's Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires employers to post a notice about the law and put together an internal-complaints committee to field complaints of harassment, one member of which must be an independent outside advisor with relevant expertise. The law's intricate procedural requirements are supposed to protect victims, but the formalities can deter reporting and be used against victims.

"Some employers wait until a complaint comes in to set the committee up," Puckett stated. "One client even told me that the local manager put the accused on the committee to evaluate the allegation against him!"

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

The emphasis on the accused's due-process rights often results in investigators making diluted findings based on allegedly "inconclusive evidence." This type of conclusion can leave both the alleged victim and the accused with clouds over their heads and a case for asserting that their rights have been violated—the accused because the report did not exonerate him or her, and the reporting party because the conclusion did not validate or protect her or him and future employees from the conduct alleged.

Retaliation

Retaliation tends to be a particularly troublesome issue related to sexual discrimination.

In the U.S., retaliation claims can be easier to prove than discrimination claims. Stateside, "fear of retaliation is strong, so make sure you have a strong anti-retaliation policy," said Cindy-Ann Thomas, an attorney with Littler in Charlotte, N.C.

But many laws abroad provide inadequate protection from retaliation—or none at all.  If they do, they often use a different term (for example, "victimization" in the United Kingdom), which may resonate differently with the workforce and those implementing anti-retaliation policies.

Retaliation rarely constitutes a free-standing cause of action, and it is often relegated to the context of an unfair dismissal or constructive-dismissal claim in which the employee must assert that she or he was forced to resign to make the harassment claim. Further, monetary damages awarded for retaliation in many countries are usually meager in comparison to the amounts awarded in the U.S., meaning that managers abroad are often less inhibited to engage in retaliatory behavior.

Retaliatory acts by accused individuals are commonplace and difficult to punish, deter or even detect in this context. One procedural tactic some employees all over the world use against U.S.-based companies is to initiate a "battle of the complaints," in which an accused employee initiates a formal complaint against whomever reported him or her, often through global ethics lines. Employers, taking their fairness obligations seriously, may then investigate the victims, retraumatizing them.

Data-protection laws such as Europe's General Data Protection Regulation can be a roadblock to investigating accusers, making it harder or riskier to conduct a document investigation across borders or a search of e-mail or mobile devices.

In some locations, employees must also overcome a heavy cultural bias against reporting. Victims often stay silent until the situation is extreme or they have nothing left to lose. This leads those reviewing or investigating a complaint to infer that the accuser's credibility is questionable.

To combat these problems, Puckett recommended that employers "adopt the perspective that a workplace full of silent victims is the bigger long-term threat and loss. Make decisions accordingly."

[Visit SHRM's resource page on workplace harassment.]

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