Sexual Harassment in Employment Relationships in Costa Rica

By: Gerardo Delgado del Valle

Following the definition given by the International Labor Organization, sexual harassment can be defined as “…insistent propositions, touching, approaches or unwanted invitations, of a sexual nature, which may come from a superior or a co-worker, which directly influence employment opportunities and working conditions or environment and which also produce effects on the victims, both psychological and emotional. It is the most common form of gender-based discrimination in the workplace.”[1]

It has also been pointed out as a form of behavior “…based on sex, of an unpleasant and offensive nature for the person who suffers it. Sexual harassment requires the confluence of both negative aspects: unwanted and offensive”[2]. In this context, two types of sexual harassment are distinguished:

Exchange sexual harassment also called “Sexual Blackmail”, which occurs when possible better working conditions are offered in exchange for sexual favors and;
The environmental sexual harassment that generates a hostile environment of intimidation, humiliation of the harassed worker.

Its manifestations. Sexual harassment can be externalized through verbal or physical behaviors of very different types, such as looks, gestures, double meaning or insinuating comments, comments about the body or private life of another person, jokes, showing pornographic material, groping, rubbing, requests for kisses, hugs or unwanted kisses, cornering, proposals of sexual relations, sexual abuse or aggression, etc.

However, the most important thing to take into consideration is that the behaviors constituting sexual harassment can be very varied and of different intensity, and that, despite its traditional definition, although it normally requires a repetition of the same for the existence of this type of harassment, it can also occur even if it only happens in an isolated episode, if it is of sufficient intensity and severity to merit this qualification (which must be analyzed in each specific case).

Its effects. Sexual harassment is considered a form of discrimination and gender violence, psychological and may even constitute physical violence. The main effect of sexual harassment is that of an intimidating, hostile, degrading, humiliating or offensive work environment, including the stress to which they are exposed, which can lead to physical consequences and, in many cases, the abandonment of employment, not to mention the impact on their private life. For its part, the employer not only has to face a drop or loss of productivity of the victim (correlated with situations such as demotivation or absenteeism), but can even see the impact of this figure reflected in intangible aspects, such as a negative impact on the corporate image; the creative or proactive decrease of its workers; in the work environment; openness to innovation and continuous learning; among others.

Attention to cases of sexual harassment. Employers have a generic duty of prevention that favors a healthy and respectful work environment, free of sexual harassment and that promotes equality between women and men; however, when the company becomes aware that some conduct may constitute sexual harassment, it must initiate an internal investigation process, in order to determine whether or not the reported harassment actually existed, and if so, take the appropriate disciplinary measures. This is without prejudice to the filing of the corresponding complaints with the respective authorities (for example, in jurisdictions where the issue is discussed in a criminal court).

To carry out the investigation within the company, it is advisable to appoint a person in charge of the company’s management, with sufficient powers to direct the process; to investigate with objectivity and impartiality the facts reported and thus ensure, for both parties, equal opportunities in the exercise of their right of defense.

The procedure for the investigation of complaints of Sexual Harassment must be governed by the principles of due process, proportionality, defense, freedom of evidence and confidentiality; bearing in mind that the main purpose of this is to obtain the real truth of the facts; without neglecting, when analyzing the circumstances of the case, that one of the main challenges presented by these processes is the difficulty of directly proving the facts, which usually occur without any further reference than the victim’s postulate.

Regulation of Sexual Harassment. At the regional level, there has been no consensus on the legal framework for punishing sexual harassment in the workplace. Some countries have opted to give sexual harassment a criminal connotation and classify it as a crime, while others regulate the problem, in parallel, through specific regulations in the workplace. However, regardless of the regulation that each legislation establishes for its territory, it is recommended to maintain internal company policies and practices aimed at combating and discouraging sexual harassment, which should include at least four main elements:

A statement of criteria or principles;
A complaint procedure adapted to sexual harassment that respects confidentiality;
Progressive disciplinary sanctions;
A training and communication strategy.

Notwithstanding the above, it is always important that companies maintain, through specialized consultancy, trained and updated personnel on the prevention of situations related to sexual harassment and the handling of complaints in cases of this nature, in order to give adequate attention to this type of circumstances, minimize the risks of the same and avoid the negative impact that these can generate within the organization.

[1] International Labor Organization. Sexual harassment at work and masculinity. Exploration with men from the general population: Central America and the Dominican Republic. San José, International Labour Organization, 2013.

[2] International Labour Organization. Sexual harassment or sexual harassment.—americas/—ro-lima/—sro san_jose/documents/publication/wcms_227404.pdf.