primeronsexualharassmentrevised-131217115757-phpapp02

PRIMER ON WORK-RELATED SEXUAL HARASSMENT* By Atty. Apollo XCS Sangalang December 17, 2013 (Version 1.1) (*The citations on most of the reference materials have been omitted in this primer. These references may however be supplied upon request).

Q:

What is the concept of work-related sexual harassment (or “SH”)?

A:

According to the Supreme Court, SH is “an imposition of misplaced ‘superiority’ which is enough to dampen an employee’s spirit and her capacity for advancement. It affects her sense of judgment; it changes here life.”

Q:

What is the nature of work-related SH?

A:

SH is a form of discrimination in the workplace that is sexual in character. Hence, it is unlawful.

Q:

How does the law define work-related SH?

A:

According to the Anti-Sexual Harassment Act of 1995 (Republic Act No. 7877), SH is committed by an employee, manager, supervisor, agent of the employer, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training 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. More specifically, SH is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, reemployment 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 a 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. Attached as ANNEX A is a copy of RA No. 7877 for reference.

Q:

Is it necessary for the offender to articulate his demand, request or requirement of sexual favor in a categorical and overt manner or in the form of a written or verbal statement?

A:

No. According to the Supreme Court, SH “may be discerned, with equal certitude, from the acts of the offender.” Example: Holding and squeezing the victim’s shoulders, running his fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future privileges, and making statements with unmistakable overtones – all these acts of the offender resound with deafening clarity the unspoken request for a sexual favor.

 

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Q:

Is it essential that the demand, request or requirement for a sexual favor be made as a condition for continued employment or for promotion to a higher position?

A:

No. According to the Supreme Court, it is enough that the offender’s acts result in creating an intimidating, hostile or offensive work environment for the victim.

Q:

Who can commit and be held liable for SH?

A:

1. Any male or female can commit it. A male offender can commit it against either a male or female victim. A female offender can commit it against either a male or female victim. 2. It can be committed by any employee, manager, supervisor, agent of the employer, trainor, or any other person who has authority, influence or moral ascendancy over another. 3. SH can also be committed by any person who directs or induces another to commit it, or who cooperates in the commission thereof by another without which it would not have been committed.

Q:

Is SH a crime?

A:

Yes. But it is also an administrative offense against company policy, which is made mandatory by RA No. 7877.

Q:

As a crime, what is the penalty for SH?

A:

Any person who violates the provisions of RA No. 7877 shall, upon conviction, be penalized by imprisonment of not less than 1 month nor more than 6 months, or a fine of not less than P10,000 nor more than P20,000, or both such fine and imprisonment at the discretion of the court.

Q:

As an administrative offense, what is the penalty for SH?

A:

It depends on existing company policies. However, administrative sanctions shall not be a bar to prosecution in the proper courts for the crime of SH. Neither shall it preclude the victim from instituting a separate and independent (civil) action for damages and other affirmative relief.

Q:

What is the duty of the employer under RA No. 7877?

A:

It shall be the duty of the employer to prevent or deter the commission of SH and to provide the procedures for the resolution, settlement or prosecution of SH. Towards this end, the employer shall: (a) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees, through their duly designated representatives, prescribing the procedure for the investigation of SH cases and the corresponding administrative sanctions. (b) The said rules and regulations shall include, among others, guidelines on proper decorum in the workplace. (c) Create a Committee on Decorum and Investigation (CoDI). The committee shall

 

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conduct meetings, as the case may be, with other officers, managers and employees, trainors and trainees to increase understanding and prevent incidents of SH. It shall also conduct the investigation of the alleged cases of SH. The CoDI shall be composed of at least 1 representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. (d) The employer shall disseminate or post a copy of RA No. 7877 for the information of all concerned. Attached as ANNEX B is a template of a company policy on SH circulated and recommended by DOLE to be adopted by all employers (BWC Guidelines No. 2 Series of 2013). Attached also as ANNEX C is a copy of the existing policies on SH promulgated by the Civil Service Commission for comparative reference. Q:

What is the liability of the employer?

A:

The employer shall be solidarily liable for damages arising from SH committed in the employment environment if the offended party informed the employer of such acts and no immediate action was taken thereon. The employer may likewise be held liable for constructive dismissal if the offended party was forced to resign due to the employer’s inaction.

Q:

What is the quantum or degree of evidence required to prove that a person is guilty of SH?

A:

For the crime of SH, it is proof beyond reasonable doubt as determined by the proper criminal court (i.e. the Metropolitan Trial Court). However, for violating company policy on SH, an employer may hold any erring manager or employee administratively liable on the basis of substantial evidence.

Q:

What is substantial evidence?

A:

In cases filed before administrative or quasi-judicial bodies, including disciplinary cases in the workplace, a fact may be deemed established if it is supported by substantial evidence, or “that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.” In criminal cases, proof beyond reasonable doubt is needed, whereas a mere preponderance of evidence will suffice in civil cases. In administrative cases, only substantial evidence is required. In essence, substantial evidence is the least exacting, in terms of weight or sufficiency of evidence, for the determination of a disputed fact. However, it is still beyond mere conjecture or bare allegation. It is more than a mere scintilla (or spark) of evidence. But it is less than preponderance, such that, even if other minds equally reasonable might conceivably have a different opinion, a reasonable mind would still accept it as adequate to justify a conclusion.

Q:

What is an example of substantial evidence?

A:

In the landmark case of Domingo vs. Rayala, the Supreme Court affirmed the findings of

 

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the CoDI upholding the testimony of the victim, a mere stenographer, against the testimony of the offender who happened to be the NLRC Chairman. Rayala was suspended for 1 year as it was merely his first SH offense. His acts, which he claimed to be fatherly or friendly and without malice, was found by the CoDI to have generated an intimidating and hostile environment for Domingo causing her to take a leave and request for transfer of assignment. Q:

Can SH be established solely on the basis of the testimony of the victim?

A:

Yes. SH cases are being approached by the courts like rape cases, wherein the victim is usually the lone witness. Like rape, SH often happens in an isolated, secluded or vacated place, where the only parties present are the offending and the offended parties. However, it is crucial that the witness is credible and that the content of her testimony is equally credible. Her narration of facts should be in consonance with human experience.

Q:

Is malicious intent (or the intent to commit SH) an essential element in an administrative case of SH?

A:

No. The Supreme Court said that intent is immaterial in administrative cases. Substantial evidence is sufficient to establish the existence of SH, whether malice or lewd intent is present or not. Recall that the essence of SH is that it is as act of discrimination and “an imposition of misplaced superiority.” It is work-related harassment and the demand, request or requirement for sexual favor just happens to be the means.

 

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