How to effectively prevent sexual harassment in the workplace?

Sexual harassment in the workplace is a common problem today. Current legislation requires companies to have internal policies to prevent and combat sexual harassment in the workplace. However, there is still no official legal document from the relevant authorities that provides specific guidance on how to develop these policies in practice. This has left many companies uncertain and struggling with compliance, development and implementation of sexual harassment policies. In this article, the author focuses on the challenges companies face in developing policies to prevent sexual harassment in the workplace and offers some specific solutions that companies can consider and apply in their own organizations. 

The development of regulations to prevent sexual harassment is the responsibility of companies 

The 2019 Labor Code and Decree No.145/2020/ND-CP have made significant advancements in regulating the prevention of sexual harassment compared to previous documents. According to the 2019 Labor Code, sexual harassment is prohibited in the workplace, and individuals who commit such acts are subject to the most severe penalty in labor relations, which is dismissal¹. In addition, the 2019 Labor Code places responsibility on businesses to develop measures to prevent and address sexual harassment. This includes the obligation for companies to issue internal regulations to prevent sexual harassment in the workplace and to establish procedures for dealing with incidents of sexual harassment². This content is critical to ensuring a healthy and safe work environment and providing a basis for disciplinary action against sexual harassment in the workplace. 

Currently, the content regarding the prevention and combating of sexual harassment in labor regulations or appendices issued together with labor regulations is guided by Article 85 of Decree No. 145/2020/ND-CP. Accordingly, the required contents include: 

• Prohibit sexual harassment in the workplace; 

• Provide detailed and specific descriptions of what is considered sexual harassment in the workplace based on the characteristics of the works and the workplace; 

• Define responsibilities, time limit, procedures, and internal handling of sexual harassment in the workplace, including those for filing and resolving complaints and allegations, and relevant regulations;  

• Establish disciplinary measures for perpetrators of sexual harassment and false accusations, depending on the nature and severity of the offense; 

• Compensation remedies for victims. 

Although there are now more detailed regulations on preventing and combating sexual harassment in the workplace compared to previous regulations, the regulations in the 2019 Labor Code and Decree No.145/2020/ND-CP are still somewhat suggestive. Therefore, when drafting labor regulations, enterprises still need to draft specific rules on preventing and combating sexual harassment that are tailored to the actual situation in the workplace. 

Companies struggle to develop sexual harassment prevention policies 

Developing specific policies to prevent and address sexual harassment in the workplace is also a challenge for companies because it is a complex issue that can be difficult for non-specialists to understand, develop and enforce. Currently, companies are still struggling to develop content on (i) identifying sexual harassment behaviors; and (ii) internal procedures and processes for dealing with sexual harassment in the workplace. 

Regarding the identification of sexual harassment behaviors, Article 84 of Decree No. 145/2020/ND-CP only provides general regulations on such behaviors, including: (i) physical behaviors, including actions, gestures, contact, physical effects of a sexual nature, or sexual suggestions; (ii) verbal sexual harassment, including direct speech, telephone calls, or electronic communications with sexual content or implications; (iii) non-verbal sexual harassment, including body language; displaying or describing visual materials about sex or related to sexual activities, either directly or through electronic means. However, listing specific behaviors with these characteristics is also an obstacle for companies³. If this list does not cover all possible real-life situations, it creates difficulties in dealing with cases that are not covered by the labor code. For example, in our consulting practice, there was a case of a male employee peeping into a women's restroom that was reported to the company, but could not be addressed because the company had not specified this behavior in the registered work regulations. Conversely, some companies, in addition to listing specific behaviors, also include "general" or "broad" rules to anticipate situations that may arise in the future, such as "other behaviors that have or are perceived to have sexual implications. However, this approach is often not accepted by some competent authorities or may require companies to amend their employment policies at the time of registration. 

With regard to internal procedures and processes for dealing with sexual harassment, the issue is sensitive and victims of such behavior often find it difficult to report or accuse those responsible, especially when the harasser holds a high or significant position within the company. Therefore, Decree No. 145/2020/ND-CP requires companies to establish internal procedures, including responsibilities, time limits and procedures for receiving and handling complaints, allegations and resolutions specifically related to sexual harassment in the workplace. In practice, each company may have different handling processes that vary in length and steps. The challenge is to ensure confidentiality while effectively addressing the nature of the issue and reassuring all parties involved. This requires not only a clear process, but also a specialized department with personnel who are knowledgeable about legal and regulatory aspects and who are able to understand the psychology of employees and other parties involved in order to prevent unfortunate outcomes while ensuring the effectiveness of business regulations. Furthermore, sexual harassment in the workplace is becoming more prevalent and diverse, affecting not only female but also male employees. This requires both companies and relevant departments to continually update policies and procedures to quickly and legally address new and emerging issues. 

Some solutions for developing effective sexual harassment policies 

Due to the specificity and complexity of the regulations on the prevention of sexual harassment in the workplace, this unintentionally creates obstacles for medium and small companies that do not have specialized personnel with good knowledge of this issue. Therefore, we offer the following solutions for companies to consider when establishing policies to prevent and combat sexual harassment in the workplace: 

First, companies must strictly follow the legal regulations, especially Articles 84 and 85 of Decree No. 145/2020/ND-CP. Only if sexual harassment behaviors are specified in the labor regulations and occur in the places mentioned in Article 84, Clause 3 of Decree No. 145/2020/ND-CP or in places designated by employees, can they serve as grounds for disciplinary action. 

Second, in addition to the legal provisions, companies can refer to some guidance documents, such as the Code of Conduct on Sexual Harassment in the Workplace issued by the Ministry of Labor, War Invalids and Social Affairs in 2015 or the Handbook on Preventing and Handling Sexual Harassment in the Workplace, to establish an internal legal framework on this issue. These documents can be used to refine the content of sexual harassment in labor regulations and provide sample procedures and rules for handling and addressing complaints of sexual harassment in the workplace. 

Third, survey and consult with employees about sexual harassment behaviors and solutions to prevent such behaviors to understand their actual experiences and concerns. These surveys and meetings should be conducted confidentially and separately for male and female employees. Properly organized, these feedback sessions will greatly assist companies in developing practical and effective solutions and policies. 

Due to the complexity and sensitivity of this issue, we have observed that many companies still do not pay sufficient attention to the regulations related to the prevention of sexual harassment. Many employment policies are formal and superficial, designed to meet legal requirements rather than address practical issues. This leads to inefficiencies in the application of these regulations when sexual harassment occurs within the organization. Therefore, in the future, companies need to focus on this issue and develop appropriate policies to ensure employee rights and comply with current regulations, with the goal of effective, safe and reputable business operations. 

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[1] Article 125, Clause 2 of the 2019 Labor Code

[2] Article 118, Clause 2, Point d of the 2019 Labor Code

[3]  https://dantri.com.vn/an-sinh/kho-goi-ten-nhan-dien-hanh-vi-quay-roi-tinh-duc-noi-lam-viec-20220916171459122.htm, (accessed on June 6, 2024)

 The article was written by Lawyer Nguyen Nhat Duong and Trainee Lawyer Cao Nguyen Bao Lien, was published in Saigon Times Magazine No. 31 August 1, 2024.

Read more at: https://thesaigontimes.vn/chong-quay-roi-tinh-duc-tai-doanh-nghiep-sao-cho-hieu-qua/