II. JUSTIFICACIÓN Y OBJETIVOS I MATERIAL Y MÉTODO
1. HÍGADO GRASO NO ALCOHÓLICO (HGNA)
2.3. ACEITE DE OLIVA
A. DEFINITIONS AND GENERAL DUTIES 261
1. DEFINITION OF SEXUAL HARASSMENT 261
2. LAWS PROHIBITING SEXUAL HARASSMENT 261
3. DUTIES ON EMPLOYERS 262
B. SEXUAL HARASSMENT POLICIES 263
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 263
5. WHAT THE POLICY MUST CONTAIN 263
6. SUGGESTED POLICY CONTENT 263
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 263
8. MAKING THE POLICY BINDING ON EMPLOYEES 264
9. LIMITS ON THE CONTENT OF THE POLICY 264
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 264
11. EXTERNAL REPORTING REQUIREMENTS 265
C. RECOURSE 265
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 265
13. PROVING A CLAIM 266
14. REMEDIES AND SANCTIONS 266
D. IMPORTANT LESSONS 267
Sexual Harassment Prevention - LUXEMBOURG
By: Céline Defay1
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
Article L.245-2 of the Labour Code defines sexual harassment as any behaviour with a sexual connotation by which the perpetrator knowingly affects, or should know that he or she affects, the dignity of a person in the workplace, provided that one of the three following conditions is met: • The behaviour is misplaced, excessive and hurtful.
• Refusing or accepting the behaviour has affected the employee’s rights in matters of professional training, employment, continuance of
employment, professional promotion, remuneration or any other decision relating to employment.
• The behaviour creates a feeling of intimidation, hostility or mortification for the victim.
The prohibited behaviour may be physical, verbal or non-verbal and, moreover, an element of intent is presumed.
2. LAWS PROHIBITING SEXUAL HARASSMENT
On 26 May 2000 the Luxembourg Parliament adopted a law dealing with sexual harassment in labour relationships. This law came into force on 4 July 2000 and was introduced into the Labour Code on 1 September 2006. The legal measures on sexual harassment are included in Chapter 5 ‘Sexual Harassment’ of Title 4 ‘Equality of treatment between men and women’ of Book 2 ‘Regulations and working conditions’ of the Labour Code.
The two main objects of Chapter 5 are to ensure the prevention of acts of sexual harassment and to grant legal rights to victims of sexual harassment, especially with regards to termination of their employment contracts.
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B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
The Labour Code does not compel employers to have a sexual harassment policy in place. However, such a policy would be advisable because it would help employers to quickly react to cases of sexual harassment and to know the appropriate measures to be taken.
5. WHAT THE POLICY MUST CONTAIN
There are no specific obligations as to what a sexual harassment policy must contain.
6. SUGGESTED POLICY CONTENT
If an employer decides to put in place a sexual harassment policy, it would be advisable to include in it the following points:
• The definition of the sexual harassment expressly prohibited within the organisation (some examples of sexual harassment could be provided). • A reminder of the rights of victims of sexual harassment.
• The process for making formal complaints to the employer about sexual harassment.
• The name and function of the person responsible for dealing with complaints (it could be a specific person or the human resources director). • An assurance that complaints will be treated seriously, confidentially and
investigated promptly.
• The possible sanctions that could be taken against the perpetrator.
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL
The Labour Code does not oblige employers to obtain the employees’ or staff representatives’ agreement to adopt a sexual harassment policy.
However, if a sexual harassment policy is integrated in the organisation’s regulations, the works council (there must be a joint works council in any company of more than 150 employees) has a co-decision power in relation to
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The measures apply to employers, employees, trainees, apprentices, pupils and students working during school holidays, customers and suppliers. Article L.245-4 (1) of the Labour Code prohibits sexual harassment which occurs during working relationships. As such, and according to Bill No 4432 (i.e. the Bill of the Law of 26 May 2000 concerning sexual harassment), these rules apply to behaviour that occurs not only in the workplace but also outside the workplace (e.g. on business trips or at the private home of a victim of sexual harassment).
3. DUTIES ON EMPLOYERS
According to Article L.245-4 (3) of the Labour Code employers are required to take all preventive measures necessary to ensure the protection of the victim’s dignity in the workplace. These measures must include providing information regarding sexual harassment to employees.
However, the Labour Code does not specify the exact preventive measures to be taken by the employer. As a result, each employer is free to determine which measures are appropriate, unless a collective bargaining agreement is applicable and provides specific procedures. As an example, the Luxembourg Bankers’ Association (the ‘ABBL’) provides guidelines on the subject of sexual harassment to give to the employees and management of their members. However, these guidelines are not compulsory.
In addition, Article L.245-4 (2) of the Labour Code provides that employers must do whatever is necessary to put an immediate end to any act of sexual harassment that they are aware of.
Article L.245-6 of the Labour Code entrusts the protection of employees against sexual harassment to the staff representative in charge of equal treatment between men and women, and the staff representatives’ committee. This Article entitles staff representatives to suggest preventive measures to the employer and to assist and advise victims of sexual harassment, especially during interviews conducted by the employer to investigate allegations of sexual harassment. Staff representatives are subject to confidentiality obligations.
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According to case law, sexual harassment may be considered as gross misconduct and could justify a dismissal. The harasser can also be transferred into another department, receive a written warning or any measure that could help to move the harasser away from the victim in order to stop the sexual harassment.
In the case of dismissal about which the employee has made a claim in court, the judge will analyse if the misconduct alleged by the employer could have justified the harasser’s dismissal and will refer to his or her length of service, professional background, social situation and level of education (Labour Court, 12 November 2009). The behaviour of the victim will also be analysed (e.g. if the victim consented to the conduct).
11. EXTERNAL REPORTING REQUIREMENTS
Employers have no obligation to inform any external bodies, such as the Labour Inspection Body, of their sexual harassment policy.
C. RECOURSE
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT
A victim of sexual harassment should inform the employer of the alleged act(s) to enable the employer to investigate. The employer will also take appropriate measures to stop the sexual harassment. These measures must not be detrimental to the victim (Article L.245-4 (2) of the Labour Code).
Article L.245-7 of the Labour Code provides a new ground for the termination of the employment contract: the resignation of an employee by reason of sexual harassment. This allows for the victim to terminate the employment contract with immediate effect based on gross misconduct. The employer may be required to pay damages because it did not anticipate or stop the sexual harassment after being informed by the victim. Upon request, the employee may also be authorised, by the President of the Labour Court, to receive unemployment benefits (normally an employee who terminates his own employment contract is not entitled to receive unemployment benefits). The employer is responsible in cases of harassment about which he was informed. In order to be able to sue the employer, the victim must prove that
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the establishment or the modification of those regulations and the employee representatives are entitled to give their advice.
As a general point regarding Article L.245-6 of the Labour Code, it may be advisable to inform the staff representative in charge of equal treatment between men and women and the staff representatives’ committee about the development of a sexual harassment policy, as they are entitled to suggest preventive measures to the employer.
8. MAKING THE POLICY BINDING ON EMPLOYEES
The employer must ensure that all employees are informed in writing of the sexual harassment policy in order to make it binding on them. The employer may inform the employees of the organisation’s regulations by posting them on the premises, on the organisation’s intranet and/or appending them to the employee’s employment contract. In addition, the employer may request employees to confirm in writing that they have received a copy of the regulations.
9. LIMITS ON THE CONTENT OF THE POLICY
A sexual harassment policy cannot place restrictions on the private life of employees or their personal rights. For example, a policy cannot prevent employees from having consensual relationships with colleagues. Nevertheless, a sanction could be possible if a consensual relationship with a colleague or superior would enable the employee to obtain an advantage (e.g. a promotion).
Moreover, a sexual harassment policy cannot put employees in a more unfavourable position than provided for under the Labour Code.
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY
The employer must be able to prove the facts of an allegation of sexual harassment and must take into consideration the length of service of the harasser and his or her professional background in order to determine the appropriate sanction. The sanctions cannot be automatic but must be determined on a case by case basis.
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D. IMPORTANT LESSONS
15. IMPORTANT LESSONS FROM CASE LAW
It should be pointed out that Labour Court judges consider that, even if sexual harassment can be declared as gross misconduct justifying dismissal with immediate effect, the employer must check if another less severe measure could be taken against the harasser.
As mentioned previously, the judges consider matters such as length of service, professional background, social situation and level of education of the harasser in order to determine if his or her summary dismissal for gross misconduct can be declared justified (Labour Court, 12 November 2009, No 34066).
For example, in a case of 12 November 2009 (which was confirmed by the Court of Cassation on 13 January 2011, No 2813), the harasser, who made some sexual remarks and jokes to a female colleague and forced her to watch a sexual and pornographic video, was dismissed with immediate effect by the employer. The judge considered that the sanction was too severe and disproportionate given the harasser’s previous length of service of 17 years and his lack of disciplinary background. The employer should have tried to change the behaviour of the harasser by other means, such as a transfer or a written warning. In consequence, the dismissal was declared unfair by the Labour Court.
In another case of 15 February 2010 (first instance), the harasser, who had a length of services of six years, was dismissed for gross misconduct by his employer for having repeatedly called a female colleague ‘honey’ in front of strangers and having put his legs between the legs of his female colleague. In this case, the judge referred to the case described above and considered that the employer should have warned the harasser to stop his inappropriate behaviour or should have tried to transfer him to another team before dismissing him. As such, the dismissal was also declared unfair (Labour Tribunal of Luxembourg, 15 February 2010, No 648/10).
Therefore, dismissal with notice is generally a more appropriate sanction in these cases. As an example, the Labour Tribunal declared a dismissal with notice to have been justified in the case of an employee with a length of service of 25 years who touched a female colleague in a sexual manner (Labour Tribunal, 21 November 2008, No 3830/08).
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he or she duly informed the employer of the existence of the harassment (Labour Court, 28 October 2004, Pasicrisie XXXII, p624).
Furthermore, in the case of resignation by the employee for sexual harassment, the employee must prove that he informed his employer about the harassment if he wishes to claim for damages from the employer. The facts must be brought to the employer’s attention and public rumour or imprecise information brought, say, by the staff representative, is not sufficient (Labour Court, 9 March 2006, No 28379).
In addition, the information about sexual harassment must have been given by the victim to the employer within a month before his or her resignation in accordance with Article L.124-10 (6) of the Labour Code, which provides a period of one month to invoke a claim of gross misconduct against the employer (Labour Court, 9 March 2006, No 28379).
13. PROVING A CLAIM
If the victim of sexual harassment establishes facts that allow one to presume the existence of sexual harassment, the burden of proof of the absence of sexual harassment lies with the defendant.
14. REMEDIES AND SANCTIONS
According to Article L.245-5 of the Labour Code, an employee may not be made subject to punitive measures because he or she protests or refuses an act of sexual harassment or gives evidence of these facts. Any punitive measures taken against the victim, including dismissal, are automatically void.
In the event of a dismissal, the employee is entitled to refer the matter, within a 15-day period following notification of the dismissal, to the President of the Labour Court. The judge is entitled to declare the dismissal void and, upon request, to reinstate the employee even if the employer disagrees with the reinstatement. The decision is provisionally enforceable (i.e., even in the case of appeal, the employer must respect the decision at least until the Court of Appeal’s definitive ruling). Either party may file an appeal within 40 days of notification of the decision (Article L.245-5 (3) of the Labour Code).
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Finally, according to a recent decision of the Labour Court (21 June 2011, No 36790), an employer has an ‘obligation of result’ concerning moral harassment, based on its legal obligation of result to protect the health and safety of its employees at work. An ‘obligation of result’ is an obligation to achieve a result whereas a ‘best efforts obligation’ only compels the employer to ‘try to’ achieve a goal. If this decision is confirmed in case law in future, judges could apply this principle to cases of sexual harassment and rule that the employer, which is responsible for the health and security of its employees, must not permit sexual harassment and is automatically responsible if it happens. So far, employers are only bound by a ‘best efforts obligation’ in cases of sexual harassment (Labour Court, No 28379 of 9 March 2006 and No 34066 of 12 November 2009).
Mexico
A. DEFINITIONS AND GENERAL DUTIES 273
1. DEFINITION OF SEXUAL HARASSMENT 273
2. LAWS PROHIBITING SEXUAL HARASSMENT 274
3. DUTIES ON EMPLOYERS 274
B. SEXUAL HARASSMENT POLICIES 275
4. BENEFITS OF A SEXUAL HARASSMENT POLICY 275
5. WHAT THE POLICY MUST CONTAIN 276
6. SUGGESTED POLICY CONTENT 276
7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 276
8. MAKING THE POLICY BINDING ON EMPLOYEES 277
9. LIMITS ON THE CONTENT OF THE POLICY 277
10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 277
11. EXTERNAL REPORTING REQUIREMENTS 277
C. RECOURSE 278
12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 278
13. PROVING A CLAIM 278
14. REMEDIES AND SANCTIONS 278
D. IMPORTANT LESSONS 278
Sexual Harassment Prevention - MEXICO
By: Monica Schiaffino
A. DEFINITIONS AND GENERAL DUTIES
1. DEFINITION OF SEXUAL HARASSMENT
Mexico lacks labour legislation that deals directly with harassment, including sexual harassment and therefore there is no definition of sexual harassment. However, the federal Criminal Code and most state criminal codes have created an offence of harassment. This offence varies among the different codes.
Article 259 of the Federal Criminal Code provides that a person:
‘who repeatedly besieges a person of either sex with lustful purposes, because of his or her hierarchy in a labour, teaching, domestic or any other relationship that includes subordination, is punishable with a fine of up to 40 days' income.’
Article 13 of the General Law on Access for Women to a Life free of Violence defines and divides sexual harassment into two categories. Firstly, sexual harassment is:
‘the exercise of power in a real relationship of subordination in which the victim faces the aggressor in a labour and/or academic environment. It could be committed by verbal, physical or both verbal and physical conduct with a sexual connotation.’
Secondly, sexual harassment is defined as a:
‘type of violence in which there is no relationship of subordination but an abusive exercise of power which leads the victim to defencelessness and puts him or her in a position of risk, regardless of whether it consists of one or more events.’
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the employee acts in any of those ways, the employer can terminate the employee’s employment contract without liability.
Note that there is no legal requirement to have a sexual harassment policy. However it is highly advisable. Equally, although there is no legal requirement to offer training on sexual harassment to employees, this is also highly advisable.
Similarly, there is no legal requirement to have a compliance officer and there are no requirements established by the FLL in relation to how complaints should be investigated. However it is advisable that the investigation is done before a notary public to prevent employees from changing their statements in the case of litigation. Note should be taken that the sole purpose of the investigation is to discipline employees or terminate the employment agreement.
B. SEXUAL HARASSMENT POLICIES
4. BENEFITS OF A SEXUAL HARASSMENT POLICY
Having a sexual harassment policy or including provisions regarding sexual harassment in the organisation’s internal labour regulations is recommended in order to be able to discipline and sanction employees in the case of breach. The internal labour regulations are a set of mandatory provisions applicable to both employees and employers in connection with the activities to be performed in a business entity or establishment.
The regulations can include codes of conduct and the organisation’s policies and these may set out the employees’ obligations and any prohibited conduct, as well as disciplinary actions. These could include termination of the employment relationship with cause and without liability for the employer. According to the FLL, when drafting internal labour regulations, the following steps should be observed:
• They must be drafted by an employer-employee committee formed by an equal number of employee and employer representatives.
• They must be deposited before the corresponding Labour Board.
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2. LAWS PROHIBITING SEXUAL HARASSMENT
There are no labour laws that specifically prohibit sexual harassment. The