“In order to build a safe and healthy working environment, the phrase “Sexual harassment” was first included in the ‘Labor Code’ in 2012. However, the related provisions in this Code were general in nature and there are no specific guidelines to identify what acts shall be deemed as sexual harassment. Nevertheless, The enforcement of Labor Code 2019 has marked a new step towards legalizing this definition.”
According to the provisions of the ‘Labor Code 2019’ and ‘Decree 145/2020/ND-CP’ which elaborates certain provisions of the Labor Code related to working conditions and labor relations, “Sexual harassment in the workplace means any sexual act of a person against another person in the workplace against the latter’s will”. Accordingly, sexual harassment may occur in the form of a request, demand, suggestion, threat, use of force to have sex in exchange for any work-related interests, or any sexual acts that thus create an insecure and uncomfortable work environment and affect the mental, physical health, performance and life of the harassed person.
Sexual harassment in the workplace shall include:
“Workplace” means any location where the employee works as agreed or assigned by the employer, including the work-related locations or spaces such as social activities, conferences, training sessions, business trips, meals, phone conversations, communications through electronic media, on shuttles provided by the employer and other locations specified by the employer.
The Labor Code 2019 has made the provisions to develop and implement solutions against sexual harassment in the workplace. It also provided the order, and procedures for handling violations of sexual harassment in the workplace, which are included mandatorily in the internal labor regulations. Accordingly, the employers are obliged to develop and implement solutions against sexual harassment in the workplace in the internal labor regulations or by the appendix promulgated together with the internal labor regulations, which must include the following contents:
The employer’s regulations on sexual harassment-related complaints and accusations, and responses to sexual harassment shall adhere to the following principles: (i) Responses are quick and timely, and (ii) privacy, dignity, honor and safety of the victims, plaintiffs and defendants are protected.
Internal labor regulations play an important role in handling sexual harassment. Accordingly, the internal labor regulations need to clearly stipulate specific behaviors, stipulate and time limit for internal handling, and forms of disciplinary measures against sexual harassment at workplace. When an employee is proven to have committed sexual harassment, he or she will be disciplined in accordance with the company’s internal labor regulations and the current law. To avoid situations where sexual harassment cannot be handled, employers should proactively specify detailed regulations related to this issue in the labor regulations. This unwanted harassment needs to be clearly defined so that it can be easily handled. In addition, the issue should be approached in the direction of the victim and the harasser is not necessarily of the opposite sex and the harasser is not always male.
According to Labor Code 2019, there are 04 labor disciplinary measures: (i) reprimand, (ii) deferment of pay rise for up to 6 months, (iii) demotion, and (iv) dismissal. Employers should clearly specify the disciplinary action to be taken depending on the seriousness of sexual harassment in the workplace. Sexual harassment, as well as other harassment in the workplace, will result in disciplinary action against the offending employee. The highest form of labor discipline for sexual harassment in the workplace is dismissal. Accordingly, employees who commit acts of sexual harassment at the workplace as stipulated in the labor regulations will be disciplined and fired. The order and procedures for disciplinary measures related to sexual harassment in the workplace are prescribed as follows:
Within the time limit for disciplinary procedures, the person having the power to initiate disciplinary procedure shall issue a disciplinary decision and send it to the mandatory participants.
After the sexual harasser has been disciplined and dismissed according to internal labor regulations, the employee who has been sexually harassed still has the right to initiate a lawsuit for compensation for non-contractual damages according to the Civil Code, 2015. This requirement obliges the harasser to compensate for damages and loss of physical and mental health caused by the harassment acts.
In case the harasser commits the worst acts of sexual harassment such as rape, sexual abuse etc., with all the elements constituting the crime specified in the Criminal code, the harasser may be criminally prosecuted.
It can be said that sexual harassment is an ongoing reality in the workplaces and the Labor Code 2019 has generally laid the ground for legalizing this issue. This is considered a practical solution and an advancement of the law to create a stable and comfortable working environment for employees, which contributes to improving the quality and efficiency of work.
Date of writing: 17th June 2021
This article is based on the current laws at the above recorded time and may no longer be relevant at the time readers access this article due to changes in applicable law and specific cases which the readers want to apply. Therefore, this article is for reference only.