Legal obligations surrounding sexual harassment in the workplace across Latin América
Over the years, countries within Latin America and the Caribbean have taken great steps to improve their regulations and public policy initiatives to tackle some of the manifestations of violence in the workplace, including but not limited to, sexual harassment. Alvaro González-Schiaffino and Jorge De Presno, partners at Basham, Ringe y Correa, Eduardo Juan Viñales of Funes de Rioja & Asociados, Enrique Munita, of Munita, Olavarria & Saez, José Antonio Valdez from Estudio Olaechea, and José Carlos Wahle from Veirano Advogados explain what this means for companies in their jurisdictions. All the firms are members of Ius Laboris, the world’s largest labour and employment law firm alliance.
In Brazil, sexual harassment has been a criminal offense since 2001. It is also a violation of civil and constitutional rights and a breach of the employee’s duties. The offender is subject to criminal prosecution, to a civil claim for damages and to dismissal for cause, forfeiting severance payments.
The company has a duty to provide its employees with a harassment-free workplace. Accordingly, it must orient, supervise and discipline its employees to secure compliance with the labour laws. If there is a case of sexual harassment within the workplace, the company is liable for damages to the victim. The company’s diligence in fulfilling its duties will determine the extension of such damages. However, the company will not be liable if the harassment does not happen within its premises and under its supervision. Damages vary according to the circumstances and are usually between US$10,000 and US$100,000.
Diligence and continuous education are instrumental for the avoidance of any corporate liability. Hotlines and independent investigations are also essential measures to deliver the message that the company will not tolerate harassment. If there is a reported case of harassment, the company must immediately conduct a swift and confidential investigation and deliver the appropriate disciplinary action. Discretion is of the essence, or the harasser may have a claim for unlawful exposure of a disciplinary action. The company can dismiss the alleged offender at any time, but before doing so the circumstances surrounding the matter must be considered and investigated very carefully.
Trecho da matéria completa disponível no site da publicação.