Anti-Sexual Harassment Workplace Policy
Preliminary
R.A. 7877 or the Anti-Sexual Harassment Act of 1995 and R.A. 1113 or the Safe Spaces Act serves as the legal bases for a mandatory workplace policy against sexual harassment in the workplace.
1. Formulation of an anti-sexual harassment policy and program
a. Mandatory for the private sector
1) R.A. 7877
R.A. 7877 mandates employers to promulgate company policies against sexual harassment in the workplace, to wit:
SEC. 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. – 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. Towards this end, the employer or head of office shall:
(a) 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. (R.A. 7877)
2) R.A. 11313
Similarly, R.A. 11313 mandates employers to promulgate company policies against gender-based sexual harassment in the workplace, to wit:
Section 17. 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. Towards this end, the employer or person of authority, influence or moral ascendancy shall:
x x x
(b) Provide measures to prevent gender-based sexual harassment in the workplace, such as the conduct of anti-sexual harassment seminars;
x x x
(d) Provide and disseminate, in consultation with all persons in the workplace, a code of conduct or workplace policy which shall:
(1) Expressly reiterate the prohibition on gender-based sexual harassment;
(2) Describe the procedures of the internal mechanism created under Section 17(c) of this Act; and
(3) Set administrative penalties. (R.A. 11313)
2. Components of an anti-sexual harassment policy and program
The Anti-Sexual Harassment Workplace Policy should have provisions for the following at the minimum:
1) Decorum and Investigation Committee;
2) Grievance Mechanism; and
3) Campaign Awareness and Training.
a. Decorum and Investigation Committee
SEC. 4. x x x
x x x
(b) 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. (R.A. 7877)
1) Composition
SEC. 4. x x x
x x x
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. (R.A. 7877)
Section 17. Duties of Employers. – x x x
x x x
(c) Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment which shall:
(1) Adequately represent the management, the employees from the supervisory rank, the rank-and-file employees, and the union, if any;
(2) Designate a woman as its head and not less than half of its members should be women;
(3) Be composed of members who should be impartial and not connected or related to the alleged perpetrator; (R.A. 11313)
1) The Decorum and Investigation Committee should be composed of:
a) A representative from the management,
b) A representative from the union, if any,
c) A representative from the supervisory rank, and
d) A representative from the rank-and-file employees;
e) Headed by a woman as its head; and
f) Not less than of the members should be women. (R.A. 7877, Section 4, cf. R.A. 11313, Section 17)
2) The member of the committee should “be impartial and not connected or related to the alleged perpetrator.” (R.A. 11313, Section 17[3])
3) In relation to No. 2, note that there is no similar restriction in relation to a member being connected or related to the complainant.
b. Grievance mechanism
Section 17. Duties of Employers. – x x x
x x x
(c) Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment which shall:
x x x
(4) Investigate and decide on the complaints within ten (10) days or less upon receipt thereof;
(5) Observe due process;
(6) Protect the complainant from retaliation; and
(7) Guarantee confidentiality to the greatest extent possible; (R.A. 11313)
1) Complaint/reporting mechanism
As the law does not prescribe how a sexual harassment case may be initiated, it falls upon the employer to exercise its management prerogative. Thus, an employer may choose to accept either/both a verbal complaint a written complaint to initiate an administrative investigation.
NB: A written complaint is recommended to be adopted by the management considering the nature, gravity, and seriousness of a sexual harassment charge or complaint. This written complaint will serve as the basis by the management in case the respondent initiates his/her own legal action to defend himself/herself against a baseless or fabricated charge.
Further, while a sexual harassment case is often raised by a complainant, there is nothing in the law prohibiting another from raising a complaint even if he/she is not the victim. For instance, an employee who witnessed a sexual harassment against a co-employee may report it to the management. This is particularly important in cases where the co-employee may be too afraid or intimidated to file a complaint.
Moreover, management per se may initiate an administrative investigation for sexual harassment should any member of the management team notice it being committed. For example, an HR manager who witnesses a supervisory employee committing sexual harassment against a rank-and-file employee, may initiate an administrative investigation.
2) Due process during administrative investigation
Once a complaint is made or an administrative investigation is initiated, the management should observe due process for both the complainant and the respondent.
Due process means giving both parties ample opportunity to explain themselves and, if needed, consult or be accompanied by counsel to assist them.
More: Due Process in Labor Law
3) Speedy resolution
Specific to sexual harassment, the law expressly requires that that the management investigate and decide on the complaint within 10 calendar days from receipt of the complaint.
NB: As the days are not specified whether it be calendar or business, it is understood as calendar days.
4) Non-retaliation
Whether the investigation results in a finding of guilt or innocence on the part of the respondent, the complainant should be protected against retaliation.
NB: Notwithstanding, an employee who maliciously initiated a baseless and groundless sexual harassment complaint may be held accountable as it is a form of serous misconduct.
5) Confidentiality
Confidentiality should be observed throughout the investigation, from the filing of a complaint to after the resolution of the case.
