CMS Expert Guide on sexual harassment in the workplace

The legal definition of harassment in the Mexican Federal Labour Law, last amended in 2019 (the “Labour Law”), is established in Article 3bis as “the exercise of power, in a subordinate relationship of the victim before the aggressor in the workplace, that is expressed in verbal or physical conduct, or both”.

Sexual harassment is defined as “a form of violence, where while there may be no subordinate relationship, there is an abuse of power that involves a state of defencelessness and risk for the victim, independently of whether it happens once or on various occasions”.   

In addition to the provisions contained within the Labour Law, the General Law on Women’s Access to a Life Free of Violence, last amended in 2018, repeats those definitions, which are expressly stated to apply in the workplace.

Finally, in December 2017, the Mexican Government published the “Action protocol against workplace violence, harassment and sexual harassment, targeted to companies in the Mexican Republic” (Protocolo de actuación frente a casos de violencia laboral, hostigamiento y acoso sexual, dirigido a las empresas de la República Mexicana) (the “Protocol”).

The purpose of the Protocol is to curate a healthy workplace environment within organisations. The Ministry of Labour and Social Security (Secretaría del Trabajo y Previsión Social), is to offer orientations, through non-binding mechanisms, that create an organizational culture where non-discrimination and dignity of all workers is respected.

The term sexual harassment is not defined by Russian law. Depending on the facts of the case sexual harassment may either be considered as discrimination or as another type of offence (e.g. coercion into sexual contact, etc.).

The Russian Labour Code (dated 30 December 2001) prohibits any type of employee discrimination including any sex-related discrimination (there are, however, no statutory norms explicitly regulating sexual harassment at work). A similar legal provision is also contained in the Constitution of the Russian Federation dated 12 December 1993, which protects the equality of all persons irrespective of their sex.

Employers are also allowed to include provisions addressing sexual harassment at work in collective bargaining agreements; however, this is not a widespread practice in Russia.

The law prohibits harassment in the workplace including sexual harassment (Official gazette of Montenegro no. br. 030/12 and 054/16).  This law has been in force since 2012.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

Following 2019 amendments to the Labour Law, employers must publish workplace equality principles, implement a workplace anti-discrimination policy, and introduce measures to combat violence and sexual harassment.

Moreover, the Protocol promotes central objectives and values to achieve a work environment free from violence: 

  • Promote a healthy culture in the workplace, through actions that are aimed to prevent all types of workplace violence.
  • Establish a voluntary action mechanism in the event of workplace violence, harassment and sexual harassment.
  • Issue information to prevent workplace violence, harassment and sexual harassment.
  • Listen to, inform and guide the people who have been a victim of workplace violence, harassment and sexual harassment. 

The Protocol, along with the Labour Law, intends to protect the following principles: dignity and defence of the individual, harmonious and healthy workplace environment, equal opportunities and no discrimination, and confidentiality.

Another instrument available to organisations is the Mexican Standard on Labour Equality and Non-Discrimination (2015). This is a voluntary scheme which companies of any size in any sector can adopt. To be accredited under the Standard, companies are audited by an independent third party to verify that its practices and policies in the workplace comply with equality and non-discrimination requirements. The aim is to ensure that companies implement policies to prevent workplace harassment and ensure that gender perspectives are considered in the recruitment, selection, mobility and training processes.

There are no explicit statutory requirements for employers to take any pro-active measures in this regard. However, the employer must make sure that employees’ rights are not violated and, in this respect, should any cases of sexual discrimination/ harassment take place at work, the employer must take measures to remedy the respective violation.

Workplace harassment is known as “mobbing” in Montenegro. An employer and an employee are obliged to comply with the rules on prevention and protection against mobbing. An employer is obliged to provide an employee with work in the workplace and working environment under conditions that ensure that employee's dignity, integrity and health are being respected, and to take the necessary measures to protect an employee from mobbing.

Additionally, before entering into employment relationship with an employee, an employer is obliged to inform him/her in writing about its rights, obligations and responsibilities in connection with mobbing.

In order to prevent mobbing, an employer must implement certain measures (i.e. by providing information and organising training) with regards to causes, manifestations and consequences of mobbing.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

#MeToo gained traction on social media in Mexico, with many women involved in the media and entertainment industry in particular coming forward as victims of different types of harassment. As a result, the number of harassment claims against employers more generally has increased.

In the public eye, a media company director was dismissed for harassment in March 2019. An author accused by various women of sexual harassment had his book launch cancelled.

No. Based on the available information, this movement had no impact on the employment relations, nor has it led to any claims filed by employees against employers in Russia.

No.

The Labour Law outlines the following legal remedies:

  • Dismissal of employees committing harassment in the workplace without liability to the employer (Article 47);
  • Employees have the right to rescind their employment relationship with their employer and request indemnification payments where the employer, its family or representatives engage in harassment and/or sexual harassment within the scope of their work (Article 51);
  • Financial penalty of c. US$1,000 to US$22,000 against the employer that commits, enables or tolerates harassment or sexual harassment.

Employees have recourse to the Conciliation and Arbitration Boards in cases of workplace harassment. 

Article 259 bis of the Federal Criminal Code provides for a financial penalty of up to c. US$4,000 for anyone who takes advantage of their position in a workplace hierarchy in order to carry out sexual harassment.

The employee can bring a claim to court and/or state labour authority against the employer. If the employer is found violating the employee’s labour rights, it can be subject to an administrative fine of up to RUB 50,000 (approx. EUR 560). The corresponding manager can also be fined up to RUB 5,000 (approx. EUR 56). The remedy can also depend on the type of action taken by the employer against the employee, e.g. if the employee was wrongfully dismissed, the court may also reinstate the employee in his/her position.

The employee can also claim in court “moral damages” suffered due to their employer’s unlawful actions. In order to claim moral damages, an employee will need to provide proof (e.g. by submitting a medical certificate issued following a medical examination of the employee.) The causal relationship between the harm caused to the employee’s health and the employer's actions, as well as the amount of the claimed moral damages should also be established by court. In practice, courts usually award very insignificant amounts of moral damages (up to EUR 500).

The victim can also make a claim to the police (depending on the nature and consequences of harassment). Sexual discrimination committed by a person by the use of his/her management power is considered to be a crime in Russia (the convicted person can be sentenced to up to 5 years to prison). If the element of management power has not been involved in the case of discrimination (e.g. when the discriminator occupies the same or an inferior position against the discriminated person and, thus, cannot exploit his/her job position for this purpose), then the violating person can be subject to an administrative fine of up to RUB 3,000 (approx. EUR 34). If a relevant offence has been committed by the company (e.g. if the company refused hiring the person based on his/her sex), it can be subject to an administrative fine of up to RUB 100,000 (approx. EUR 1,120).

Coercion into sexual contact, including the use of a person’s dependent position (which could be relevant for the corresponding case between the employee and his/her manager), is also considered to be a crime in Russia and may lead to the corresponding punishment (up to one year imprisonment). It should be noted that criminal liability in Russia can be imposed only on individuals (companies cannot be held criminally liable in Russia).

In addition, public dishonouring of a person on the basis of his/her sex can be recognised as an administrative offence and lead to imposition of an administrative fine of up to RUB 500,000 (approx. EUR 5,600) on companies and RUB 20,000 (approx. EUR 225) on corresponding company’s officers (who alternatively can also be arrested for 15 days, or charged with community service of up to 100 hours). If the same offence has been repeated by a natural person within one year after this person was imposed with the said administrative liability, he/she could be held criminally liable and, as a result, may be imprisoned for up to 5 years. Additionally, if such an offence was committed by a person with the use of his/her job position, then he/she could be subject to criminal liability (up to 6 years imprisonment) even for a single offence.

In the event of being found to have committed the offence of mobbing, an employer may be fined between €500 to €10,000 (ii) the person responsible may be fined between €500 and €3,000 and (iii) an entrepreneur may be fined between €100 and €1,500.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

We would say Mexico sits in the amber scale. The scale of the problem had a significant impact on a political level, leading to the Ministry of Labour and Social Security issuing the Protocol. However, companies generally do not appear to be prioritising tackling sexual harassment as a matter of corporate governance policy.

Currently, the priority addressed to this matter in Russia sits in the green category. Relevant claims are very rarely filed by the employees, and employers, accordingly, do not consider this to be a major issue in practice.

Amber. 

6. Any other relevant information on workplace harassment?

Whilst changes in the law in the last decade and, more pointedly, the #MeToo movement have raised public consciousness on sexual harassment in the workplace, it remains to be seen whether measures taken will be effective in preventing and punishing workplace harassment. Social media is providing a platform for victims to speak out, often anonymously for fear of professional or social reprisals.

Groups in various industries are coming together to create momentum, either by creating specific hashtags or social media accounts for their profession, to add impetus to the movement. For example, 70 employees at Grupo Reforma, one of Mexico’s largest newspaper companies, wrote a joint letter to the company’s Ethics Committee requesting an investigation into various accusations. Given that formal employment-related complaints to the Conciliation and Arbitration Boards take an average of 2-3 years to fully resolve, procedural barriers may dissuade victims from embarking on that path.

It should be noted that in relevant cases it is usually quite difficult for an employee to prove the acts of discrimination due to a lack of available evidence (unless there is a witness who can confirm the allegations).

In addition, we estimate that the quantity of corresponding claims from employees could possibly slightly increase in the future given that employees become more educated about their rights.

The law defines harassment (i.e. mobbing) as any active or passive conduct at work or in relation to work for an employee or group of employees, which is repeated, which is intended or represents a violation of the dignity, reputation, personal and professional integrity of the employee and which causes fear or creates a hostile, humiliating or offensive environment, deteriorates the working conditions or leads to the isolation of employees or results in them terminating their contract of employment or other contract on their own initiative (including encouraging or instigating others to do so). Mobbing behaviour includes sexual harassment.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

The #MeToo movement produced several sexual harassment complaints, particularly among journalists and those working in the television and entertainment industries. The United Mexican Journalists was created in 2018 by female journalists looking to develop strategies to confront sexual harassment in their industry. According to a survey by the United Mexican Journalists last year, 73% of women working in creative industries have faced sexual harassment.

Multiple accusations of sexual harassment have also emerged from Mexican academic and higher-education institutions. The National Autonomous University of Mexico (UNAM), Latin America’s largest university, implemented its first gender violence protocol in 2016.

Currently, the UNAM and other higher education institutions are also protesting to underpin the gender equality protocols. This culminated in a nationwide protest on 8-9 March 2020, where thousands of women marched in protest against gender violence and femicide. On International Women’s Day, thousands of women did not attend work or participate in the economy to demonstrate their importance to the workplace, the economy and society, in what was known as “A Day Without Women”.

No. To the best of our knowledge there are no specific sectors particularly affected by, or concerned with, harassment.

No, we are not aware of any particular sector that has been affected by harassment. There have not been many disputes concerning harassment since the Law on prohibition of harassment in the workplace came into force (June 2012), not because there are no harassment at work, rather for the mentality of people as well as lack of awareness of this issue in Montenegro.