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D. Sexual harassment in the work environment

1. Definition

a. Sexual harassment in the work environment (R.A. 7877)

Work -related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, 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 R.A. 7877. (Section 3, R.A. 7877, Anti-Sexual Harassment Act of 1995)

1) How committed

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, 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;

2) The above acts would impair the employee’s rights or privileges under existing labor laws; or

3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. (Section 3[a], Ibid.)

2) Demand, request, or require sex, not essential

It is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondent’s acts result in creating an intimidating, hostile or offensive environment for the employee. (Domingo v. Rayala, G.R. Nos. 155831, 155840, 158700, 18 February 2008)

b. Gender-based sexual harassment in the workplace (R.A. 11313)

The crime of gender-based sexual harassment in the workplace includes the following:

1) An act or series of acts involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities;

2) A conduct of sexual nature and other conduct-based on sex affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient, whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems;

3) A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient: Provided, That the crime of gender-based sexual harassment may also be committed between peers and those committed to a superior officer by a subordinate, or to a teacher by a student, or to a trainer by a trainee; and

4) Information and communication system refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents. (Section 16, R.A. 11313, Safe Spaces Act)

Gender refers to a set of socially ascribed characteristics, norms, roles, attitudes, values and expectations identifying the social behavior of men and women, and the relations between them. (Section 3[4], Ibid.)

Gender identity and/or expression refers to the personal sense of identity as characterized, among others, by manner of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with physiological characteristics of the opposite sex, in which case this person is considered transgender. (Section 3[6], Ibid.)

Public spaces refer to streets and alleys, public parks, schools, buildings, malls, bars, restaurants, transportation terminals, public markets, spaces used as evacuation centers, government offices, public utility vehicles as well as private vehicles covered by app-based transport network services and other recreational spaces such as, but not limited to, cinema halls, theaters and spas. (Section 3[7], Ibid.)

2. Duties and liabilities of employers

a. Sexual harassment in the work environment (R.A. 7877)

1) Duties of employers

It shall be the duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. (Section 4, R.A. 7877)

Towards this end, the employer or head of office shall:

1) Promulgate appropriate rules and regulations in consultation with and jointly 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.

2) 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. (Ibid.)

The employer or head of office, educational or training institution shall disseminate or post . copy of this Act for the information of all concerned. (Paragraph 4, Section 4, Ibid.)

a) Work or employment -related sexual harassment

In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. (Paragraph 2, Section 4, Ibid.)

b) Education or training -related sexual harassment

In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors or coaches and students or trainees, as the case may be. (Paragraph 3, Section 4, Ibid.)

2) Liabilities of employers, 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 thereon. (Section 5, Ibid.)

b. Gender-based sexual harassment in the workplace (R.A. 11313)

1) Duties of employers

Employers or other persons of authority, influence or moral ascendancy in a workplace shall have the duty to prevent, deter, or punish the performance of acts of gender-based sexual harassment in the workplace. (Section 17, R.A. 11313)

Towards this end, the employer or person of authority, influence or moral ascendancy shall:

1) Disseminate or post in a conspicuous place a copy of this Act to all persons in the workplace;

2) Provide measures to prevent gender-based sexual harassment in the workplace, such as the conduct of anti-sexual harassment seminars;

3) Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment which shall:

a) Adequately represent the management, the employees from the supervisory rank, the rank-and-file employees, and the union, if any;

b) Designate a woman as its head and not less than half of its members should be women;

c) Be composed of members who should be impartial and not connected or related to the alleged perpetrator;

d) Investigate and decide on the complaints within ten days or less upon receipt thereof;

e) Observe due process;

f) Protect the complainant from retaliation; and

g) Guarantee confidentiality to the greatest extent possible;

4) Provide and disseminate, in consultation with all persons in the workplace, a code of conduct or workplace policy which shall;

a) Expressly reiterate the prohibition on gender-based sexual harassment;

b) Describe the procedures of the internal mechanism created under Section 17(c) of this Act; and

c) Set administrative penalties. (Section 17, Ibid.)

2) Liabilities of employers

In addition to liabilities for committing acts of gender-based sexual harassment, employers may also be held responsible for: (a) Non-implementation of their duties under Section 17 of this Act, as provided in the penal provisions; or (b) Not taking action on reported acts of gender-based sexual harassment committed in the workplace. (Section 19, Ibid.)                 

3. Applicable laws:

a. Sexual Harassment Act

(See above.)

b. Safe Spaces Act

(See above.)

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