The term "sexual harassment" appeared as a Vietnamese legal concept for the very first time in the Labor Code of 2012. The 2012 legislation simply prohibited "maltreating employees and committing sexual harassment in the workplace."1 While the law did prohibit an employer and employee from committing acts of sexual harassment in the workplace, it did nothing to define the term, or provide measures for discipline. But, effective January 1, 2021, the new Labor Code ("LC" or "Labor Code") came into force replacing the 2012 Labor Code, and defined sexual harassment as "any sexual act of a person against another person in the workplace against the latter's will." 2
In parallel, Decree 145/2020/ND-CP ("Decree 145"), issued on December 14, 2020 defined sexual harassment as "including both non-verbal harassment, through body language or displays of sex or sexual activities either directly, through media, or through suggestive actions, gestures, and verbal comments." 3 The Labor Code not only obliges the employer to implement and develop solutions to issues that involve sexual harassment, but also declared that addressing sexual harassment is mandatory and must be addressed in the company's Internal Labor Regulations ("ILRs"). Sexual harassment became legal grounds for dismissal.
Jurisdiction of an Employer's Internal Labor Regulations
Although ILRs are not formally defined within the Labor Code, certain required contents are outlined. ILRs are created by an employer and they prescribe rules of conduct for an employee and define what may be considered to be a violation. According to the Labor Code, "any employer with 10 or more employees must issue ILRs and register them with the provincial Department of Labor, Invalids and Social Affairs" ("DOLISA").4 The document must clarify terms of employee conduct, prescribe prohibited acts and specify disciplinary measures. It is a legal basis for an employer to act against violations of discipline. Any violation of ILR terms must be addressed with disciplinary measures within 6-months from the violation. If ILRs are not registered with DOLISA, the employer is subject to a fine. ILRs need to be issued by the employer in consultation with the employee representative organization at the workplace (internal trade union) and their comments must be submitted when the ILRs are filed. While some language of the ILRs is discretionary for the employer, some provisions are required. Procedures and definitions involving sexual harassment are required. Employers must develop and implement measures to prevent workplace sexual harassment and must specify disciplinary action.
Considerations for employers when referencing Sexual Harassment in the workplace
Pursuant to the LC and Decree 145, the employer is responsible to outline and specify conduct considered to be sexual harassment and declare how that conduct will be addressed. The employer should first describe the conduct which it deems to be sexual harassment with special attention to cultural norms. For example, the broad definition of "violence and harassment" is detailed by the Internal Labor Organization ("ILO") and includes a wide range of unacceptable behavior likely to result in "physical psychological, sexual, or economic harm, and gender-based violence and harassment."5 Decree 145 enlarges the ILO's definition of sexual harassment and characterizes it as "a request, demand, suggestion, threat, quid-pro-quo for sexual favors; or any sexual acts that create an insecure and uncomfortable work environment that affects the mental and physical health of the individual as well as the performance and life of the harassed person." Accordingly, the employer should clearly define terms in the ILRs such as harassment, discrimination, and violence and how they may result in unsolicited and unwanted acts against an individual. Employers can specify sexual harassment as hostility demonstrated because of sex in a multitude of ways; say, because of sexual orientation or display of sexual orientation contrary to traditional gender stereotypes, sexual identity and gender, or sexual advances. The LC allows the employer to define sexual harassment within the culture of the company and the workplace environment. Decree 145 makes clear that sexual harassment may be demonstrated explicitly through physical gestures and actions, but also implicitly through verbal hostility or suggestive comments, and non-verbally through body language and displays of sexual inuendo, both in person, and via an electronic platform. All of this should be captured within the ILRs.
Sexual Harassment Defined
The following provide examples of defined terms in ILRs acceptable for registration.
Article I. Harassment in the Workplace
Harassment means behavior or conduct that is not accepted or expected by others, with or without the use of violence. It is a work environment that is intimidating, hostile, humiliating, threatening, or causes discomfort or stress to others. Harassment may be verbal (in spoken or written form) or in the form of actions that may occur once or continuously throughout a period. Harassment may occur in person-to-person interactions, group interactions, at the Company or in a designated workplace, or via internet communications outside the physical work environment.
Article II. Sexual Harassment in the Workplace
A. Sexual Harassment in the Workplace means sexual conduct by any person with any other person at the workplace without consensual acceptance. Sexual harassment at the workplace may occur in the form of exchanges such as a proposal, request, suggestion, threat, coercion to exchange sex for any work-related benefit; or conduct of a sexual nature with the intention of sex, thereby creating an uncomfortable and insecure working environment. Sexual harassment in the workplace may be in the form of harassment due to someone's sexual identity, sexual orientation, or gender, causing physical or mental harm to the victim and to his/her work efficiency or life is also considered sexual harassment.
An employer must also define what constitutes a "workplace" and the procedures to handle sexual harassment outside of normal working hours or outside the office. "Workplace" is defined in the LC as "any location where the employee works as agreed or assigned by the employer, including work-related locations such as locations for social activities, conferences, training sessions, and activities such as business trips, meals, phone conversations, communications through electronic media, on shuttles provided by the employer and in other locations or activities specified by the employer."6 The employer should consider including specific parameters within their definition of workplace to account for cases of out-of-office conferences, work dinners, or a work event outside of working hours. A clause defining location may be added into the definition, for example: "Sexual harassment by an Employee vis-a-vis another Employee, whether at the place of everyday work or whether work related but in a location outside the workplace, regardless of working hours is still considered sexual harassment in the workplace. The above clause specifies sexual harassment as being between employees and may potentially occur outside a normal office environment, and outside of working hours. Employers may also wish to include in their ILRs a list of prohibited behaviors relating to sexual harassment as a preemptive measure. For example:
B. Prohibited Sexual Harassment at the Workplace
- Threatening to refuse or remove employment opportunities or benefits if an Employee does not accept a proposal or request for sex or sexual implications.
- Promising or offering employment opportunities or other benefits or consequences (promotion, training, discipline, reward, dismissal, salary increase, or other benefits) if an Employee will accept or refuse a proposal or request for sex or other sexual implications.
- Giving employment opportunities or benefits after the candidate or the Employee has accepted a proposal or request for sex.
- Conducting non-verbal behavior such as sexual glances, gestures, solicitations, displays of sexual images, objects, cartoons, calendars, magazines or posters;
- Partaking in obscene verbal remarks such as making comments, teasing, or derogatory jokes that are sexual in nature, or referring to another person with a loving name;
- Repeated sexual requests or suggestions including repeatedly requesting dates;
- Sending text messages via electronic devices or written notes relating to sex;
- Verbal comments, ridicule, or harsh remarks relating to someone's sexuality, inclusive of their gender, sexual orientation, sexual identity, or their displays of sexuality in the workplace;
- Making comments on social networks or sending messages that are inappropriate and have sexual implications or are mocking of someone else's sexuality;
- Touching, contacting, obstructing, or preventing movement in an unwanted way to threaten or use violence to coerce someone into having sex or to threaten their sexual identity.
The above provides suggestions of conduct that may be included within the company's ILRs to clarify and define what the employer considers to be sexual harassment.
LC and Decree 145 generally specify that ILRs also require the employer not only to define sexual harassment, but to take reasonable preventative measures to avoid sexual harassment in the workplace. The employer is expected to make certain that sexual harassment regulations are known and to conduct training that informs employees of the regulations. It is important that a complainant and an accused have support.7
The current LC and Decree 145 require that the ILRs permit a victim to file a report and for an employer to set out expected action. Both regulations strictly prohibit employers from unwelcomed behavior classified as sexual harassment 8. In practice, it would be easier for victims if there were multiple channels to report sexual harassment, say, a hotline or through more informal reporting methods.
Addressing Sexual Harassment in the Workplace
Once it is clear what constitutes sexual harassment an employer must set out procedures to respond.9 The employer is required by Decree 145 to investigate claims of sexual harassment with the caveat that action is taken in a timely manner and ensures the privacy, dignity, honor, and safety of the plaintiff. In case an employee's violation is ascertained at a hearing to be true the employer must take action such as reprimand, dismissal, etc, as appropriate. 10 The Labor Code states that disciplinary measures against an employee include deferment of pay for up to 6 months, demotion, or immediate dismissal. Employers may discipline an employee in any way they see fit, but only for one ILRs violation at a time. Sexual harassment as defined by the employer in the ILRs is subject to immediate dismissal for disciplinary reasons under the Labor Code. The statute of limitations that applies is 6 months from the date of the violation, and the Labor Code requires that the employer must establish the employee's fault or wrongdoing. The disciplinary process is inclusive of a hearing 11, and the employer must notify the employee and a representative organization of employees, and the legal representative for the employee (if the employee has one). The disciplinary process must be recorded beginning with a hearing notice and giving parties at least 5 days prior to the hearing. There should be a written summary of the hearing signed by all parties. All such disciplinary proceedings and the corresponding protocols must be outlined in the ILRs.
At the hearing, the sexually harassed employee will be required to submit evidence but should be protected from harassment by the accused. Decree 145 makes the employer responsible to take remedial steps following settlement of a sexual harassment claim. Following the employer's conclusion that an act of sexual harassment has occurred, the employee has the right unilaterally to terminate his/her employment contract.
Collective bargaining through negotiation for proper and safe conditions may also take place.
The standardization of procedures to address sexual harassment is under review. In a recent workshop in collaboration with the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), Nguyen Thi Dieu Hong, DOLISA's deputy head stated that procedures within the ILRs should be implemented through seven steps: receiving complaints; resolving internal disputes through mediation; appointing someone to verify the claims; conducting an investigation as to the claim; notification of the investigation's findings and disciplinary action and compensation. These steps are not part of Decision 145 or the current LC, but employers are urged to consider these steps within their ILR's.
Footnotes
1 Article 8.2 Labor Law 2012
2 Article 3.9 Labor Law 2019
3 Article 84. 2 Decree 145/2020/ND-CP
4 Article 118.1 Labor Law 2019
5 Article 1 Clause 190 International Labor Organization
6 Article 84.3 Labor Code 2019
7 Article 86.3b Decree 145/2020/ND-CP
8 Article 165 Labor Code 2019
9 Article 85 Decree 145/2020/ND-CP
10 Article 125.2 Labor Code 2019
11 Article 121 Labor Code 2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.