17 December 2020



1. Assumption of fact

1.1. Sebastian is the managing partner of a Boston-based law firm, Wilson Lawyers, which has a staff of more than 30 lawyers and specialises in commercial and transaction law. 

1.2. On a Tuesday morning, Jessica, a lawyer who works in the same team as Sebastian, comes to Sebastián's office to deal with a new case that the firm is handling. Upon entering the office, Sebastian commented with mockery on Jessica's physical appearance. After the meeting, and just as Jessica was about to leave the office, Sebastian laughed again at Jessica's physical appearance. These comments continued throughout the week and Jessica does not know if she can stop these actions by Sebastián, so she uses the protocol that has been set up at Wilson Lawyers to deal with sexual harassment in the office.

2. Definition

2.1. Sexual harassment is considered to be any behavior, physical or verbal, of a sexual nature, which has the purpose of violating the dignity of the victim by creating an environment that is degrading and offensive to them. For example, and in this case, when repeated teasing occurs because of the physical appearance of one of the co-workers. Obscene and repeated behavior by one worker towards another could also be harassment.

2.2. Moral or psychological harassment occurs when a person, or a group of persons, exercises psychological violence on the victim(s) on a continuous basis, creating a hostile working environment. This harassment has to be repeated more than once, without constituting an isolated and punctual action. For example, this happens when a worker treats another of his or her co-workers contemptuously, either outside or inside the workplace. 

3. Purpose

3.1. This protocol aims to stop harassment of a sexual nature and any other type of harassment exercised by a worker, or a group of workers, towards one of their professional colleagues.

3.2. By means of this Protocol, the relevant procedures shall be established to avoid discrimination and degradation, physical or psychological, of the harassed worker.

4. Scope of Action

4.1. The relevant procedures for stopping harassment at work among workers shall be carried out by the firm itself through a specific Committee for these situations, or by the Human Resources Department, which shall be responsible for their subsequent review.

5. Development of procedures

5.1. In the event of harassment by one worker, or group of workers, of another, it shall be resolved in the first instance through informal means, and in the event of failure or ineffectiveness, through formal means or complaint.

5.2. Resolution of harassment problems through informal channels

5.2.1. This route seeks to solve the problem faced by lawyers by means of a more agile and dialogued method, with the participation of an intermediary between the parties involved. This approach must be carried out with the utmost discretion and confidentiality.

5.2.2. In the first instance, and if the victim considers it necessary, they can ask for advice from a "Confidential Advisor", appointed by the heads of the Lawyers' Office. The "Confidential Adviser" will provide assistance and advice to the worker who is the victim of harassment. 

5.2.3. The "Confidential Adviser" must have adequate training to deal with the best way to solve this kind of problem and must have a thorough knowledge of the policy and procedures of the law firm.

5.2.4. As soon as the "Confidential Advisor" becomes aware of a conflict between workers, he will summon the parties involved to a meeting in which the facts will be presented and a solution proposed. This meeting must be held within a maximum of 20 working days, starting the day after the "Confidential Advisor" becomes aware of the problem. 

5.2.5. After this meeting has been held, the "Confidential Advisor" must issue a report as soon as possible, in order to gather the facts between the parties involved in the most objective manner possible, and to issue a solution adopted, trying to resolve the denigrating action towards the victim, and must maintain strict confidentiality.

5.2.6. If the problem between the parties involved persists, or if the solution determined by the informal route has not stopped the discriminatory and denigrating actions against the victim(s), the formal route must be followed.

5.3. Resolving harassment problems through formal channels

5.3.1. The formal route for the resolution of problems of harassment at work will be carried out when these four situations occur: 

- When the victim considers that the measures to solve the problem, announced by the "Confidential Advisor" through the procedures of the informal channel, are insufficient.

- When the channels and procedures established in the informal channels have not been successful.

- When the result proposed by the "Confidential Adviser" after the relevant meeting, established in the informal procedures, has been unsatisfactory.

- When the seriousness of the matter strictly requires the formal route (For this purpose, a harassment issue will be considered to be of a certain degree of seriousness when the actions that have taken place in the workplace occur equally outside the workplace, or take place in spaces surrounded by third parties). 

5.3.2. Initial writing The formal proceedings shall begin by means of a document drawn up by the victim(s) and another person belonging to the law firm who has sound and rigorous knowledge of the facts. The initial document shall include a detailed account of the facts and behavior constituting the sexual, psychological or moral harassment of the victim(s). The main objective of this document, in addition to describing in detail the facts that have taken place, is to prevent it from being narrated repeatedly by the victim(s). This initial brief is sent to the designated "Confidential Adviser". This document must be kept strictly serious and confidential. 

Below is a sample Initial Writing (also attached at the top of the article):

5.3.3. Investigation Phase At the time the initial brief is sent, the Investigation phase will commence. The initiation of the Investigation phase will entail the creation of a commission for this purpose (known as the "Investigation Commission"), made up of the "Confidential Advisor" who has received the initial brief and who will decide the number of "Confidential Advisors" who will have to make up the "Investigation Commission", depending on the seriousness of the matter. The members of the "Commission of Inquiry" do not have to have any links with any of the parties involved in the harassment. The investigation phase must last as long as necessary, but not longer than 15 calendar days, except for situations whose gravity and circumstances require a longer period. During the investigation phase, the relevant precautionary measures may be taken, without these involving a presumption of guilt against any of the workers. During this phase of the investigation, meetings may be held between the parties in order to discuss and analyse the facts that have occurred, and maximum confidentiality must be guaranteed for everything that is discussed at these meetings.

5.3.4. Report Within one month from the start of the investigation phase, the "Committee of Inquiry" shall issue a report indicating whether or not in the opinion of the members of this Committee there has been harassment, the means of evidence used to reach the decision and the measures to stop the harassing or degrading situation. The "Commission of Inquiry", or a person designated for this purpose, will control and periodically review the implementation and effectiveness of the measures announced to stop harassment at work. If requested by the victim(s), a person shall be designated to offer assistance support.

Below is a model conclusion document prepared by the Research Committee (also attached at the top of the article):

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International legislation about harassment

- USA: https://www.eeoc.gov/sexual-harassment

- Australia: https://humanrights.gov.au/our-work/sexual-harassment-workplace-legal-definition-sexual-harassment

- United Kingdom: https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace

- Taiwan: https://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=D0050074

- New Zealand: http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304651.html

- Norway: http://kifinfo.no/en/content/legislation

- Ireland: https://www.ihrec.ie/guides-and-tools/human-rights-and-equality-for-employers/what-does-the-law-say/sexual-harassment-and-harassment-in-the-workplace/

- Canadá: https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/sexual-harassment.html

- European Union States: https://op.europa.eu/en/publication-detail/-/publication/e06dcc86-b7bf-459e-8241-47502ef379c4

- South Africa: https://genderjustice.org.za/card/what-is-sexual-harassment-and-how-can-you-deal-with-it/know-your-rights/#:~:text=The%20Protection%20from%20Harassment%20Act,right%20to%20privacy%20and%20dignity.&text=The%20Labour%20Relations%20Act3,sexual%20harassment%20in%20the%20workplace

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