The article written by Lawyer Nguyen Van Quynh – Senior Associate of Phuoc & Partners is published on Saigon Economic Times dated 14/11/2013.
In 2012, the issue of sexual harassment (“SH”) in the workplace was, for the first time, recognised and codified in the Labor Code (LC) of Vietnam. Accordingly Vietnam now strictly prohibits and respectively sanctions SH, i.e. employees can unilaterally terminate a labour contract, or employees who are domestic workers may denounce their employer to the authorities if the employer commits SH. However, the labour law of Vietnam has not explained or given guidance on what SH is, what behaviour is considered to be acts of SH, and how to demonstrate this sensitive story? This article will apply foreign insights and experiences to analyse these ambiguities in the law of Vietnam and offers some explanations and suggestions
Viewed from the law of Vietnam
Before the LC took effect, the law of Vietnam did not provide for SH, although the Criminal Code of 1999 has as many as 05 articles (from Article 111 to Article 116) providing for sexual offences. Hence the making of laws on SH is considered one of the more progressive steps of this LC in comparison with the old Labour CodeIn recent times a series of documents guiding the implementation of the LC 2012 have been issued, however the law of Vietnam remains silent about the interpretation of the phrase “SH”. A draft Decree on the sanctioning of administrative labour violations has identified SH behaviour as one of the violations that is subject to fines, however when Decree 95 was issued, SH was not mentioned in its contents. We recognize that the phrase “SH” is a rather vague semantically, and its interpretation is dependent on each person’s feelings. Therefore, if there is no official guidance from the competent authorities of Vietnam, we are afraid that this advanced regulation will only exist as a “theoretical” regulation.
So to remedy this fact, the guiding documents should explain the following contents:
Experiences and insights from foreign law
Under the guidance of the International Labour Organization (ILO), SH behaviour is a violation of the fundamental rights of employees; constituting labour safety, discrimination between women and men and is performed in various forms and may be in a combination of these forms. First, SH can be an act of touching sensitive parts of the body such as the chest, waist and buttocks. Second, SH can be innocuous or aggravated comments of a personal nature i.e. comments, stories, jokes of lustful nature; enticement, sexual suggestion; using threatening words or rewards relating to work to solicit sex. And finally, SH as a non-verbal form, such as sending documents or images of pornography, using a symbolic gesture to invite or solicit sex. In particular, ILO requires its members to enact policies and measures that the country think suitable; the actual conditions of that country to implement international labour standards are recorded in a series of conventions prepared by the ILO, including but not limited to, the 1958 Convention on discrimination C111 –Convention on the regulation of behaviour of the ILO. Thus, when Vietnam became a member of ILO and joined Convention 111 in 1997, Vietnam is obliged to implement the Convention.
In the U.S. legal system, SH is a sexually discriminatory behaviour as violating Section VII of the 1964 Civil Rights Act, and as guided specifically in a document of the U.S. Equal Employment Opportunity Commission. In essence, SH behaviours in the workplace are construed as acts of sexual proposal inconsistent with the will of the people receiving the proposal, suggesting a number of favours if the SH is agreed by the people receiving the proposal; and other verbal and non-verbal conduct which impedes work, or which creates an unfriendly or hostile working environment. An unfriendly working environment is one that is defined as an environment where the employees can demonstrate: (1) they are directly suggesting or hinting about sex through actions or words; (2) these acts are not reciprocated; and (3) these acts are serious enough to change the working conditions of the employees who receives the suggestion. However, the law does not define any form and any factor determining the presence of SH. Instead, the United States Supreme Court affirms that the decision on the legality of SH should be based on facts, specific cases, and the generality of circumstances in which SH occurs.
It should be noted that, in fact , the conclusion about the existence of SH behaviour usually occurs in cases where the person committing SH have had sexual intercourse with the person being harassed numerous times and the harassed person actually gets special privileges at work.
In all, the U.S. regulates that SH can occur within the workplace of all industries, between men and women or between people of the same sex, usually between boss and employee; between colleagues, between the staff and customers, and may or may not involve actual sexual relations in practice.
We all know that the consequences of SH are quite complex. For people being sexually harassed, usually their productivity will reduce, be dispirited, in a state of nervous tension or depression and often have to seek treatment and take medicines. On the employer side, a lawsuit relating to SH in the workplace often creates a bad impression within the community regarding the company; employee will look to leave and recruitment of new employees will be more difficult because of this discreet psychology. As a result, labour productivity can be reduced. Furthermore, society as a whole will incur costs related to social welfare payments for people being sexually harassed or opportunities for advancement into higher positions in society for employees who are sexually harassed may also be limited after competent authorities can conclude that they have been sexually harassed.
In the future, when Vietnam issues specific guiding documents on SH behaviour in the workplace, Vietnam should assert: (1) who is the subject of SH behaviour, including but not limited to male employee or female employees and male or female employers; (2) the criteria for determining the existence of SH behaviour is not necessarily related to actual acts of sexual behaviour; and (3) the place at which the SH behaviour occurs is not necessarily only the workplace.
With no specific guidance currently, however, a lawsuit can still be entered into requesting the Court to settle the SH behaviour in the workplace without waiting for detailed guidance because in fact a number of enterprises, in internal labour regulations registered with the competent labour authority, have regulations prohibiting SH in the workplace. Therefore, enterprises need only to guide the employees to perform the necessary operations to protect themselves. Specifically, an employee being sexually harassed may bring a lawsuit to the civil Court, according to the rules of civil procedure, to ensure their legitimate rights and interests while waiting for documents guiding specifically on SH.