Convention No. 190 and Recommendation No. 206 call on ratifying countries to adopt laws and regulations
requiring employers to “take appropriate steps commensurate with their degree of control to prevent
violence and harassment in the world of work, including gender-based violence and harassment” (Convention No. 190, Art. 9).
Article 9
Each Member shall adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender-based violence and harassment, and in particular, so far as is reasonably practicable, to:
- adopt and implement, in consultation with workers and their representatives, a workplace policy on violence and harassment;
- take into account violence and harassment and associated psychosocial risks in the management of occupational safety and health;
- identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives, and take measures to prevent and control them; and
- provide to workers and other persons concerned information and training, in accessible formats as appropriate, on the identified hazards and risks of violence and harassment and the associated prevention and protection measures, including on the rights and responsibilities of workers and other persons concerned in relation to the policy referred to in subparagraph (a) of this Article.
In the majority of countries, legislation requires employers to respect workers’ right to equality and non-discrimination, and to protect workers’ safety and health in the workplace. In addition, workers are typically compelled by law to comply with safety and health regulations. In some of these countries, occupational safety and health implicitly or explicitly includes risks and hazards that could lead to violence and harassment. In some countries, gender-based violence and harassment and/or other forms of discrimination-based harassment are themselves the object of specific preventive measures. Increasingly, the duty to prevent and protect against various forms of violence and harassment is recognized as a stand-alone obligation.
5.1.1. The extent of employers’ responsibility
The obligations under Article 9 should be read in light of the concept of violence and harassment as defined in Article 1, the scope of protection as per Article 2, and in relation to all instances provided for in Article 3. However, employers’ responsibility is qualified in two respects: first, the measures prescribed must be “appropriate” and correspond to the employers’ “degree of control”; and second, they should be taken “so far is reasonably practicable”. 25
Even though these two qualifiers are not defined in Convention No. 190 or Recommendation No. 206, it is clear that employers cannot be responsible for situations, circumstances or persons beyond their degree of control. A degree of flexibility is foreseen. In other words, the measures taken should be commensurate with the means available and reasonable within a given context. It is thus a matter of each country ratifying Convention No. 190 to:
- identify the criteria that will be used to specify the “degree of control” held by employers; and
- evaluate the measures to be taken and the means through which these measures will be implemented to prevent violence and harassment.
Box 18. Violence and harassment and employers’ responsibilities
Albania: Section 32(1) of the Labour Code (Law No. 136/2015) provides that employers have an obligation to respect and protect the employment relationship by taking all necessary measures to ensure the safety, mental and physical health of employees; to prevent and stop moral and sexual harassment through relevant sanctions; and to prevent any behaviour that would undermine the dignity of the employee.
China: As of 2020, the amended Civil Code sets out new obligations, including for employers, in relation to sexual harassment. Article 1010 provides as follows:
A person who has been sexually harassed against his will by another person through oral words, written language, images, physical acts, or the like, has the right to request the actor to bear civil liability in accordance with law. The State organs, enterprises, schools, and other organizations shall take reasonable precautions, accept and hear complaints, investigate and handle cases, and take other like measures to prevent and stop sexual harassment conducted by a person through taking advantage of his position and power or a superior–subordinate relationship, and the like.
France: From 1 January 2019, companies employing at least 250 employees must designate a person to guide, inform and support employees in the fight against sexual harassment and sexist behaviour (a so called “harassment officer”). 26
Niger: Article 122 of Decree No. 2017-682/PRN/MET/PS in regulation of the Labour Code provides: “The employer must take all the necessary measures to prevent acts of sexual harassment.”
Portugal: The Labour Code, as amended by Law No. 73/2017 of 16 August 2017, strengthens the legislative framework for the prevention of harassment by, inter alia, introducing an obligation on companies with more than seven employees to adopt a code of conduct on harassment in the workplace (art. 127(1)(k)), and to start disciplinary proceedings against an employee whenever an alleged harassment at work is revealed (art. 129(1)(l)). In 2018, a Guide for the Elaboration of the Code of Good Conduct for the Prevention of and Fight against Harassment at Work was published (Coelho et al. 2018).
Puerto Rico (United States): Article 5 of Law No. 90 of 2020 states the following:
An employer who engages in, encourages or permits workplace harassment shall be civilly liable to the persons affected. It shall be the responsibility of every employer to take the necessary measures to eliminate or minimize the occurrence of workplace harassment. Therefore, every employer shall adopt and implement the necessary internal policies to prevent, discourage and avoid workplace harassment in its workplaces, as well as investigate all allegations and impose the corresponding sanctions in those cases where appropriate.
Romania: Article 2 of Law No. 202, 2002 (as amended in 2015 and 2018) on equal opportunities and equal treatment for women and men provides that central and local public institutions and authorities, civil and military, with more than 50 employees, as well as private companies with more than 50 employees, should identify an employee to whom to assign tasks in the field of equal opportunities and treatment between women and men, including preventing and combating harassment at work.
Saudi Arabia: Article 5(1) of the 2018 Anti-Harassment Law states:
The competent authorities in the government sector and in the private sector shall put in place the necessary measures to prevent and combat harassment in their own working environments, provided they include the following:
- An internal complaints mechanism in the sector;
- The necessary procedures to ascertain the veracity and seriousness of complaints in such a manner as to maintain their confidentiality;
- The dissemination and communication of such measures to those targeted by them.
The same article also provides: “The competent authorities in the government sector and in the private sector shall hold accountable – in disciplinary terms – any of those targeted by the measures in the event that they violate any of the provisions stipulated in this Act, in accordance with the established procedures.”
Social partner and business-led initiatives
Ecuador: The Chamber of Industries and Production (CIP) has been developing several actions against gender-based violence. In particular, in October 2020, it launched a comprehensive campaign on the prevention and elimination of violence against women at work, at home, at school and in society (“Más unidas, más protegidas”). Many CIP member companies have also adopted codes of conduct/ ethics that prohibit any kind of violence and harassment against women at work (Portal Diverso 2020).
India: The bus company Bengaluru Metropolitan Transport Corporation created a Women’s Safety Committee with members from the commuters’ association, civil society organizations and police. Following a survey among bus users, the company installed closed-circuit television cameras in buses and bus stations. It also organized gender sensitization training of male drivers and conductors, and targeted recruitment and training of women drivers and conductors with a view to addressing gender-based violence and harassment in particular (Social Development Direct 2020a).
Japan: Established in the early 1950s by trade unions and consumer cooperatives to enable their members to access finance at a time workers were excluded from the financial sector, Rokin (Labour) Banks is a network of 13 union-led cooperative financial institutions operating all across Japan. They count over 51,000 member organizations that represent 11 million individuals, mostly workers, including low-income workers (Kurimoto, Koseki, and Breda 2019). Rokin Banks recently developed and adopted the “Rokin Harassment Guidelines”. The Guidelines provide protection against all forms of harassment, including by third parties. The personal and material scope of the Guidelines reflect Articles 2 and 3 of Convention No. 190. They provide a broad protection by establishing internal reporting and complaint mechanisms, by providing effective remedies and protection against retaliation, by establishing a consultation service for victims, and by creating referral mechanisms to external specialized agencies and trade unions to ensure that all forms of harassment reports are received centrally and that it is easy for workers to access such services (Rokin Banks 2021).
RussianFederation: In January 2021 the Russian fooddeliveryplatformYandex included new terms and conditions on its policy. According to the new rules, the Yandex platform can block or restrict users’ access to the functions of the services for aggression or a rude attitude towards couriers. The company plans to offer legal advice to couriers who encounter such behaviours in the future (Khachatryan 2021).
South Africa: Agricultural company Country Bird has introduced a range of measures to improve physical safety and reduce gender-based violence and harassment risks during and after work. Following a series of incidents, Country Bird provided a minibusserviceforworkersafter their night shift and increased the number of closed-circuit television cameras around the processing plant (Social Development Direct 2020c).
25 It should be noted that this is a common concept in OSH legislation, and indeed appears in Convention No. 155, whose Article 4(2) states as follows: “The aim of the policy [on occupational safety, occupational health and the working environment] shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment” (ILO 1979).
26 In its practical guide, the French Government suggested the following role for the harassment officer: i) introducing awareness-raising measures and training measures for employees and managers; ii) directing employees towards competent authorities (labour inspector, labour doctor, official defender of the rights); iii) implementing internal procedures in order to encourage the reporting and processing of a situation of sexual harassment or sexist attitudes; iv) conducting internal investigations after the reporting of a situation of sexual harassment or sexist attitude (France 2019).