6 January 2021
Sexual harassment in the workplace remains a severe and pervasive problem as it results in lost productivity and morale among the employees. Tolerating or failing to adequately respond to sexual harassment in the workplace has far-reaching impact in every aspect of the business – from employees’ mental health and efficiency to the company’s reputation, accountability and its legal consequences.
Workplace sexual harassment occurs when a person who has authority over another in a work environment imposes sexual favors on another, which creates an intimidating, hostile, or offensive environment for the latter. (Section 3 (a)[1] of Republic Act No. 7877)
The law mandates the employer to prevent or deter the commission of sexual harassment and to provide procedures for the resolution and prosecution of sexual harassment. In particular, the employer shall promulgate rules and regulations in consultation with and jointly approved by the employees regarding the investigation and prosecution of sexual harassment cases and create a committee on decorum and investigation of cases on sexual harassment. (Sections 4(a) and 4(b) of Republic Act No. 7877)
In the event that a sexual harassment claim has been reported by an employee, it is imperative that the employer takes a prompt and exhaustive investigation as soon as possible. Otherwise, said employee will be considered constructively dismissed if he or she was sexually harassed by his or her superior and the employer failed to act on his or her complaint with prompt and sensitivity. This doctrine was illustrated by the Supreme Court in the fairly recent case of LBC Express-Vis, Inc. v. Monica C. Palco, G.R. No. 217101, 12 February 2020.
In the said case, a customer associate noticed something amiss in the way her team leader treated her. The former initially shrugged it off and simply focused on her job but the latter’s actions grew bolder, such as when he started to find ways to put his hand on her lap or shoulder and kiss her on the cheek in a joking manner. The latter also inconceivably pulled the strap of her undergarment and joked about making a baby with her.
The final straw happened when her team leader sneaked in on her while she was counting money, held her on her hips, and kissed her lips. Four days after the incident, she reported the sexual harassment to the head office and was advised to transfer to another team while they investigated on the matter. Sensing that the management did not immediately act on her complaint, she resigned thirteen days from the incident asserting that she was forced to quit because she no longer felt safe at work.
One month after her resignation, the employer served a copy of a Notice to Explain to her team leader who was later suspended for a period of sixty days without pay four months after the incident. She later filed a complaint for Illegal Dismissal against her employer.
Her employer argued that it cannot be held liable for constructive dismissal because it was her team leader who committed the acts subject of her complaint and the employer did not know of, participate, or consent to such acts and only learned of the same after she reported it. Her employer further argued that four months is not an unreasonable period to resolve a sexual harassment complaint.
The Supreme Court was unconvinced and held the employer liable for constructive dismissal. In so ruling, the Court stressed that “constructive dismissal does not always involve forthright dismissal or diminution in benefits. There may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment [and] one of the ways by which a hostile or offensive work environment is created is through sexual harassment of an employee.”
In this case, the Court held that the team leader’s acts are not only inappropriate but are offensive and invasive enough to result in an unsafe work environment for the employee. The Court furthered that even if the employer had no participation in the sexual harassment, it had been informed of the incident. Despite this, the employer failed to take immediate action on the complaint and this reinforced the hostile work environment created by the team leader.
The Supreme Court likewise underscored the delay on the employer’s part in acting on the complaint: (1) there was no showing that the employer acted on the complaint before serving a Notice to Explain; (2) said Notice to Explain was served forty-one days after the incident and the administrative hearing commenced one month after serving the Notice; and (3) it took the employer two months to resolve the matter. Due to the employer’s insensitivity, it was made liable for the employee’s separation pay, damages and attorney’s fees.
As the Court aptly ruled, indifference to complaints of sexual harassment victims may no longer be tolerated. In fact, the State’s policy against sexual harassment has been strengthened through the passage of Republic Act No. 11313 also known as the Safe Spaces Act. Said law expanded the definition of sexual harassment in the workplace by including sexual requests or favors done through the use of technology and those committed by a subordinate to a superior officer. Most importantly, the said law requires that complaints of sexual harassment be investigated and resolved within ten days or less upon its reporting.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
