Bargaining on sexual harassment examined
Research indicates that sexual harassment at work is a widespread problem in Spain. With the implementation of recent EU legislation outlawing sexual harassment raising the issue's profile in 2004, this article examines collective bargaining on harassment. It finds that bargaining deals relatively little with the matter, and when it does so this is generally in an inadequate way. However, some examples of good practice can be identified.
EU law is currently highlighting regulation of the issue of sexual harassment at work. EU Directive 2002/73/EC (EU0205201N) amending the 1976 gender equal treatment Directive (76/207/EEC) must be implemented by October 2005. With the revision of the Directive, for the first time at EU level binding legislation now defines sexual harassment and outlaws it as a form of discrimination based on sex.
The revised equal treatment Directive defines: 'harassment': as occurring 'where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment'; and 'sexual harassment' as occurring 'where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment'. Harassment and sexual harassment are deemed to be discrimination on the grounds of sex and therefore prohibited. A person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person. Member States must encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace.
While the revised equal treatment Directive is the first binding EU legislation on sexual harassment, it had been preceded by: a June 1990 Council of Ministers resolution on the protection of the dignity of women and men at work; and a November 1991 European Commission Recommendation (92/131/EEC) of 27 on the protection of the dignity of women and men at work, which incorporated a code of practice on measures to combat sexual harassment. The code of practice defines the concept of sexual harassment rather more widely.
Evidence on sexual harassment
A survey of working conditions carried out in 2000 by the European Foundation for the Improvement of Living and Working Conditions estimated that 6% of workers suffered sexual harassment. For Spain the figure was 5%.
According to the findings of a survey conducted by the Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO) in 2000, 18% of female Spanish workers felt that their organisational superiors and colleagues invaded their 'physical space' with unwanted sexual insinuations, or that they were subject to 'blackmail' by superiors who made their future prospects at work dependent on accepting a sexual relationship. The study found that 54% of female workers believed that their work environment was sexually hostile.
Almost 30% of cases of reported sexual harassment involved a female worker without a contract, and precarious employment appears to a risk factor. Another significant figure was that 40% of the reported victims were separated or divorced. In the opinion of CC.OO, being in a stable couple 'generates a certain respect' that inhibits colleagues. One of the difficulties of research in this area is that many people do not use the term 'sexual harassment' to describe certain situations or behaviours. However, 18.3% of interviewees reported behaviours that were linked to such harassment. Over half of the interviewees who reported sexual harassment (56.5%) stated that a colleague or superior has invaded their physical space and made embarrassing proposals, 19% said that they had been touched by colleagues, clients or superiors, 12% reported having felt under pressure to maintain sexual relations, and 9% claimed that blackmail had been attempted.
According to the CC.OO study, 35% of cases of sexual harassment end when women leave the job. Only 3% of reported cases reach the courts. Such cases are also not reported in the employee's company, and many fellow workers apparently believe that this type of situation belongs to the private sphere. Only two out of 10 victims report the harassment to their immediate superior or seek the support of their colleagues. The majority decide to try and avoid the harasser. Very few seek assistance from trade unions or women's associations. The harasser is the victim’s hierarchical superior in the vast majority of cases.
The CC.OO study differentiates between sexual harassment and 'environmental harassment'. The latter refers to comments on people's bodies, jokes with sexual content or the displaying of pornography in the workplace. Of the interviewees, 40.2% considered that there was sexism in the workplace.
In the CC.OO research, 8% of men stated that they had suffered some form of sexual harassment at work, a similar figure to that found in some other European studies. What many men tended to call harassment was undesired sexual attention, and rarely pressure or blackmail. Homosexuality may be a risk factor, because a certain hostility may be created with regard to people with this sexual orientation.
The General Workers’ Confederation (Unión General de Trabajadores, UGT) agrees that sexual harassment is typically suffered by women aged 30-40 with a low income on a temporary contract .It considers that the public authorities should deal with this type of humiliating behaviour more strictly.
Regulation by collective bargaining
Recent research by Juana Mª Serrano (see La negociación colectiva en España: una visión cualitativa, R Escudero (ed), CC.OO, 2004) draws the following conclusions from an examination of the treatment of sexual harassment in collective agreements (ES0312102F):
- at national sectoral level, 55% of agreements studied mention 'sexual harassment', and most of these identify it as a very serious offence. However, they fail to define relevant behaviour or sexual harassment itself, or to describe the procedures for reporting it;
- at regional sectoral level, only 25% of agreements examined mention sexual harassment, generally referring to it as a very serious offence, whereas the rest fail to deal with the subject;
- at the provincial sectoral level, 37% of agreements studied explicitly seek to combat sexual harassment, and they tend to regulate it in slightly more detail than national and regional agreements; and
- at the company level, the social partners seem to have little interest in the subject, with only just over 12% of agreements examined mentioning sexual harassment, and defining it as a serious offence. Positive examples of company agreements are reported from the telecommunications sector (Retevisión, Televisión Valenciana, Televisió de Catalunya, Arteixo Telecom, Jesytel, Telefónica Servicios Audiovisuales and Siemens) and the graphic arts, press and paper sector (Diario ABC, Unidad Editorial El Mundo and La Voz de Galicia).
Good practices in collective bargaining
Although, according to the abovementioned research, many collective agreements deal with the subject insufficiently or inadequately, some provide for good practices with regard to sexual harassment and may be used as examples. Some agreements - such as those for the iron and steel industry in Gerona, and for advertising companies - differentiate between specific inter-personal and general environmental sexual harassment, a distinction promoted by the joint social partner monitoring committee for the intersectoral agreement providing a framework for lower-level collective bargaining in 2003 (ES0302204F). Some agreements - such as that for the cleaning sector in Seville - identify the behaviour that can be considered as sexual harassment, such as suggestive comments, jokes, sexual comments, asking for sexual favours, insinuations, blackmail at work, use of pornography, and any act of abuse. Some agreements define sexual harassment as very serious, some lay down procedures for reporting or mediation in disputes, and some stipulate the type of penalty applicable.
On the basis of these findings, the following might be said to be the ideal contents of a collective agreement in terms of dealing with sexual harassment:
- the inclusion of provisions on harassment and sexual harassment, and a full definition of these terms;
- far-ranging and specific identification of behaviours that represent sexual harassment;
- distinction between specific inter-personal and general environmental sexual harassment;
- consideration of sexual harassment as a very serious offence;
- establishment of supervision procedures, mediation procedures and monitoring committees;
- definition of the procedure for reporting harassment; and
- the establishment of type of penalties for harassers. In practice, the penalty for harassment tends to be a suspension of employment and wages lasting 10-60 days, or dismissal.
With regard to the responsibility of the employers for tackling sexual harassment (the EU code of practice states that employers have a responsibility to seek to ensure that the work environment is free from such conduct) the collective agreement for textile retailing in Barcelona states that if the victim has not reported the incident within 15 days, the employer will not be responsible for the events concerned.
The regulation of sexual harassment by collective bargaining is fragmentary, atomised and often totally absent. The experts who study this phenomenon find that there is as yet no strong social commitment by the social partners, though awareness of this question is increasing and it is beginning to be regulated in collective agreements. The implementation of the revised EU equal treatment Directive may influence future negotiations.
The subject is regulated in few collective agreements and even in these it is not dealt with in sufficient depth. There is a need for explicit regulation because these events often still tend to be considered as 'natural'. Sexual harassment not only affects the right to equality and non-discrimination, as stated, for example, in Article 4.2 of the Workers' Statute (Estatuto de los Trabajadores), but also the rights to privacy, personal dignity, health and safety and physical and moral integrity, and at times even the right to employment, as argued by Juana Mª Serrano (cited above 2004). There is also a need for an accompanying regulation of other harassment at work.
Sexual harassment also receives little recognition in society, and there is a need for greater awareness of its effects. There is also a need for greater attribution of responsibilities to employers (which are responsible for organisation and health and safety at work) and to fellow workers, through the fostering of values of equality and respect for others. As these are currently lacking, women workers are often the victims of harassment. (Daniel Albarracín, CIREM Foundation)