Monday, October 20, 2014

Mexico - Sexual Harassment in the Workplace

By: Ernesto Velarde-Danache
Ernesto Velarde-Danache Inc., Brownsville, Texas

While dealing with day to day labor matters for several clients in Mexico I was asked on several occasions to intervene and render advice on terminating an employee due to sexual harassment at the workplace. It was surprising for the employers and their corporate counsel to learn that such conduct was not punished in Mexico, from a labor standpoint, even when the incidence of sexual harassment was extremely high in Mexico.

The extensive amendments to the Mexican Federal Labor Law passed on December 2012 now include and define the concept of “sexual harassment” and even consider it a cause for termination of the labor relationship without liability to the employer. We still have to undergo the cultural changes that this reform should bring since there are still many reasons that cause Mexican victims to passively accept and potentially live for years with sexual harassment, despite the psychological burden.

Some victims might fear that the claim will not be treated in a strictly confidential manner and co-workers would, as a result, end up knowing details that no victim would want divulged. A Mexican victim being harassed often is left with the following options: acquiesce, demand the offender stop or file a claim, which at the end of the day does not represent an economic benefit for him or her. Additionally, when the third option is contemplated, the victim would normally think about the potential repercussions of the claim: Is my story credible? What if the offender argues that I consented to his or her advances, or somehow encouraged them? Would my employer act upon my claim and investigate? Might there be retaliation if the offender is found guilty and punished?

The victim also might worry over what kind of reaction a boyfriend or girlfriend, a husband/wife, a father or brothers might have if they found out what has been happening in the workplace. For some, there can be a possibility of a violent reaction. As a result, some victims of sexual harassment would rather stay quiet and continue working, while others would rather quit the job without informing their employer of the cause that originated their decision to leave.

The Law’s Provisions

Yet despite the reluctance to file complaints by many, we are now starting to perceive a tendency to denounce sexual harassment in the workplace. When a complaint is filed with an employer, the employer has an obligation to immediately start an investigation of the allegations. The employer must use all diligence to determine if the allegations are true and act accordingly, always doing his or her best to keep all facts confidential.

As mentioned above, Article 47 of the Mexican Federal Labor Law establishes that employees engaging in sexual harassment actions will be terminated with cause and, as a consequence, not be entitled to severance. In addition, a criminal action may be initiated by the victim. As it concerns employers, not only is it prohibited for supervisors to sexually harass their employees, but also a supervisor would be penalized for permitting or tolerating this kind of behavior in the workplace. Article 994 establishes that substantial fines will be imposed on employers that tolerate sexual harassment.

As a result, employers should now be vigilant and thoroughly investigate any claims that are filed or any allegations by third parties that might suggest conduct that could be construed as sexual harassment. A serious, professional and comprehensive investigation, properly documented, needs to be immediately initiated once a claim has been filed. We strongly recommend to our clients that a notice on the scope of the new law as it pertains to sexual harassment be posted in a visible place, informing all employees that the employer does not tolerate this kind of behavior and encouraging employees to report any wrongdoings on this subject. Article 3-B, subparagraph (b), provides the definition of what constitutes sexual harassment and thus should be included in the posting. Additionally, employees should be made aware that it is very likely the State’s Criminal Code contemplates such conduct as a crime.

The procedure for filing a sexual harassment claim should be described on the notice, as well as the name and title of the official who will receive any complaints. We also recommend that those involved in the reception, handling and further investigation of the complaints be properly trained employees of the human resources department. These individuals must take every reasonable step to prevent a leak of information. They should keep all inherent information strictly confidential and make it available solely on an “as-needed basis.”

We also encourage employers to hold periodic seminars led by reputable specialists to better educate the labor force on the contents of the new legislation, and the rights and obligations of employers and employees. Moreover, ethics in the workplace needs to be a frequent topic discussed in seminars, with special emphasis on sexual harassment and its consequences. To be successful, all complaints of sexual harassment must be investigated, and all offenders terminated. There should be a zero tolerance rule with no exceptions.