Panama: Sexual Harassment in Companies and in the Education Sector
Published: May, 2018
Submission: May, 2018
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The International Labor Organization (ILO) defines sexual harassment as “any conduct of unwanted sexual nature that, according to the reasonable perception of the recipient, interferes with their work, is established as a condition of employment or creates an intimidating hostile or offensive work environment.”
As the jurist Oscar Vargas Velarde points out in his work on Labor Law, jurisprudence in the United States indicates that sexual harassment can also occur in two aspects:
Types of Sexual Harassment
Taking into consideration the definitions and criteria of the various courts, Panamanians and foreigners, we can determine the existence of at least three types of sexual harassment, namely:
As noted, these conducts can be of varied nature, such as requirements, propositions, jokes, teasing, and display of posters or photos with sexist remarks, from physical behaviors or unwanted contact that can be vexatious for the victim, until it becomes assault or sexual assault.
Many victims of sexual harassment accept this situation and do not report it because they fear losing their jobs and, also, for fear of not being taken seriously since most of the time they do not have evidence to prove the harassment and, thus, it would be one’s person word against another one. Although the victims of sexual harassment are mostly women, men also suffer from them, especially in today's world where more and more women occupy more important or higher-ranking roles within companies.
What does Panamanian legislation say for companies?
The Republic of Panama approved Law 7 of February 14, 2018, which adopts measures to prevent, prohibit and punish discriminatory acts and dictates other provisions. The provisions of the Law are of public order and bind all those who are in the national territory.
This law prohibits and establishes responsibility for all acts of violence that threaten the honor, dignity, physical and psychological integrity of the people. It also defines “harassment, sexual or moral harassment”, as the systematic or continuous action or omission or eventual repetition, in which a person insinuates, invites, requests, pursues, limits or restricts rights, diminishes freedom, acts disrespectfully or offensively, humiliates others in order to obtain some sexual retribution or affects the dignity of the other person.
In the workplace, it includes, but is not limited to, exploitation, the refusal to give the victim the same employment opportunities, not applying the same selection criteria, not respecting the permanence or general conditions of work or discrediting the work accomplished.
It defines “racism”, as a conception that starts from a superiority of certain races or race over others, and “sexism”, as the attitude or action that undervalues, excludes, over presents and stereotypes people by their sex.
Obligations of the employer according to the new Law
Every employer shall have the responsibility to establish an internal policy, through orientation programs and included in the internal regulations or collective agreements, that prevents, avoids, discourages and sanctions the acts of harassment, sexual or moral harassment, racism and sexism. Failure to comply with the measures ordered by the employers entails a fine of B/.550.00 to B/.1,000.00, imposed by the jurisdictional labor authority, each time a case is sanctioned for any of the conducts provided in the law.
The Ministry of Labor and the hierarchical superiors in the private company are the entities in charge of ensuring compliance with the Law, when the responsibility for establishing the policy against the described conducts is borne by the employer.
What should the affected employee do?
An employee who feels sexually harassed or persecuted should inform their superior or the corresponding department what is occurring and provide evidence, if available, to allow the employer to conduct the corresponding investigation, which allows him/her to dismiss the harasser on justified grounds. Likewise, the employee harassed by a superior, for sexual purposes, can resign from employment on justified grounds, and by proving what has been reported, the employee shall be entitled to payment of the compensation provided for in the Labor Code, in cases of dismissals with cause justified.
The procedure to investigate and resolve cases of harassment, sexual or moral harassment, racism and sexism shall be expeditious, effective and confidential and in no case may exceed the period of three months, counted from the filing of the complaint.
Whenever a case of harassment, sexual or moral harassment, racism and sexism is reported, companies must prepare a written report thereof, which shall contain the details of the investigation, allegations and testimonies and other elements of evidence.
Whoever falsely denounces any conducts sanctioned in the Law shall commit the offense of criminal simulation, according to the Criminal Code.
Effects of the law in the education sector
The regulations set forth in Law 7 of February 14, 2018 also apply to students of educational and teaching centers, both official and private within the Republic of Panama.
It defines harassment, sexual or moral harassment, such as threats, intimidation, humiliation, mocking, physical abuse and discrimination against people with disabilities or any type of discrimination based or not on the sex of the victim.
It also defines racism as the conception that starts from a superiority of certain races or races over others, based on a supposed biological purity that must be translated into advantages for the superior race, or in the recognition of its dominion over others or others that are eventually discriminated against and treated unworthily.
On the other hand, sexism is defined as the attitude or action that undervalues, excludes, over represents and stereotyped people by sex.
Obligations of educational entities
Every official or private school shall have the responsibility to establish an internal policy that prevents, avoids, discourages and punishes acts of harassment, sexual or moral harassment, racism and sexism. Consequently, they should:
Non-compliance with the measures set forth in the law by employers, hierarchical superiors of the victim in educational centers shall be sanctioned with a fine of B/.500.00 to B/.1,000.00.
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