Violence and harassment at the workplace are complex phenomena associated with significant economic, social and human costs. Employers worldwide are increasingly aware of emerging requirements designed to protect worker safety and discourage behavior that puts their employees at risk of emotional and physical distress.
For example, sexual harassment at the workplace has been associated with higher labor costs and lower profitability. More specific effects include increased employee turnover, productivity losses and costs resulting from associated sick leave. In the most extreme cases, work-related sexual misconduct can result in bankruptcy—such as in the case of the Weinstein Company.
The problem of workplace violence and harassment is common around the globe. As stated in a recent ILO report which covers more than a billion workers, up to 12 percent of surveyed workers reported unwanted sexual attention or harassment, humiliating behavior or verbal abuse at the workplace (Eurofound and International Labour Organization ((2019)), Working conditions in a global perspective, Publications Office of the European Union, Luxembourg, and International Labour Organization, Geneva). The real, unreported numbers are likely to be much higher.
The adoption of the Violence and Harassment Convention, 2019 (No. 190) by the ILO in June 2019 [hereinafter the 2019 Convention] is a manifestation of a new era of workplace culture and of the obligations of employers in this regard. It marks the first time that violence and harassment at the workplace have been included in new global labor standards.
This matter has received increasing attention in the past two decades. However, protests on a global scale following the American #MeToo movement and the Time’s Up initiative have created a sense of urgency in addressing the problem at the workplace as we move into 2020. There is simply no going back.
The 2019 Convention obliges Member States to establish legally binding measures to ban and punish violence and harassment at work. Moreover, Member States must ensure that employers have a policy in place to address violence and harassment. According to Violence and Harassment Recommendation, 2019 (No. 206) attached to the 2019 Convention, this policy should:
- state that violence and harassment will not be tolerated
- establish programs for the prevention of violence and harassment
- specify the rights and responsibilities of workers and the employer
- contain information on complaint and investigation procedures
- provide that all communications related to incidents of violence and harassment will be duly considered and acted upon
- specify the right to privacy of individuals and confidentiality, and
- include measures to protect complainants, victims, witnesses and whistle-blowers.
New definition of violence and harassment at the workplace
When it comes to occupational violence and harassment, one complicating factor is the lack of clarity and uniformity in what exactly is defined as violence and harassment at the workplace. The new 2019 Convention seeks to overcome this by introducing a new definition that focuses on the practical effects of such behavior. Namely, violence and harassment are defined as “a range of unacceptable behaviours and practices …that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm” (Article 1.1(a)). This broad definition can include verbal and physical abuse, bullying and sexual harassment and stalking.
Other important features of the 2019 Convention
When it comes to the scope of protection, the 2019 Convention aims to cover all workers, regardless of their contractual status. This includes categories such as job applicants, trainees and volunteers.
The 2019 Convention also covers work-related communications, such as e-mail, in order to account for situations where the work is not carried out at the physical workplace.
In addition, the 2019 Convention acknowledges that violence and harassment at the workplace can have many dimensions; it accounts for the role of third parties—for example clients, service providers and members of the public—in such behavior. More concretely, this means that workplace risk assessments should take into account hazards and risks involving third parties, whether as perpetrators or targets of the inappropriate behavior.
Lastly, Member States are also obliged through the 2019 Convention to take measures to recognize and mitigate the impact of domestic violence in the workplace.
Challenges remain in the field
As mentioned above, the 2019 Convention makes it obligatory to establish legally binding measures to ban and punish violence and harassment at work. This is a significant step towards addressing and reducing this behaviour in the workplace. In the past 10 years, 35 countries have introduced legislation addressing occupational sexual harassment. Nonetheless, 59 out of 189 countries studied by the World Bank in 2018 still did not have specific legislation against workplace (sexual) harassment.
It is not only the lack of binding legislation on the matter that allows harassment and violence to persist; problems of awareness and acknowledgement remain in many countries, despite the introduction of concrete legal obligations for employers.
In many jurisdictions, enforcement is yet another hurdle which is difficult to overcome. To begin with, several countries do not provide for any redress in the form of civil remedies or criminal penalties as a result of infringements of anti-harassment laws. One may question the usefulness of rules when there are no consequences for their violation.
Next steps for employers
As we start this new year and decade, employers should be mindful of the trend toward increasing regulatory requirements to protect employees. However, employers should not wait for legislation to be in place to address these problems. Companies cannot afford to ignore the implications for staff wellbeing and the associated costs arising from workplace violence and harassment. Employers should consider how existing occupational safety and health regulations may be interpreted to ensure protections for different groups of workers, particularly groups that are most vulnerable. While creating a work atmosphere based on dignity and respect does not happen overnight, it does not have to require significant economic investment. The 2019 Convention and its Recommendation provide a well-defined framework for action and outline relevant tools that employers can use. A simple starting point is to ensure that violence and harassment are included under the existing occupational risk assessment procedure and to ensure that it also covers third parties.