The employment year in review: combatting discrimination and harassment
This series of articles looks back thematically at the employment law year, incorporating contributions from Ius Laboris member firms across the alliance. The first part covers developments in protection from harassment and discrimination.
The impact of #metoo continues to be felt around the globe. In June 2019, the International Labour Organisation (ILO) adopted a global convention on the elimination of violence and harassment in the world of work that covers, in particular, gender-based violence and harassment, including sexual harassment. The convention covers a range of unacceptable behaviours that ‘aim at, result in, or are likely to result in physical, psychological, sexual or economic harm’, and recognises that this can happen through work-related communications and technology as well as within a physical workplace. The convention covers all workers irrespective of contractual status, and also takes into account the fact that third parties (such as clients, customers and service providers) can be both victims and perpetrators of harassment. ILO conventions have no direct effect in domestic law, but can put pressure on governments to legislate, and can be cited in disputes.
In Denmark, unions, employers and the Danish Working Environment Authority have launched a campaign to prevent sexual harassment as well as unacceptable and offensive conduct at the workplace.
In France, from 1 January 2019, companies employing at least 250 employees must designate a person to guide, inform and support employees in the fight against sexual harassment and sexist behaviour.
In Germany, the legislator is currently discussing a new law that would punish ‘upskirting’ more severely.
Spain is gradually extending its requirement to negotiate equality plans (which must include measures to prevent sexual harassment) to companies employing 50 employees (from the previous threshold of 250).
In December 2019, the maximum two years’ gross remuneration was awarded by the Irish Workplace Relations Commission in a sexual harassment case in Ireland.
The UK is looking at introducing tougher controls on non-disclosure agreements (NDAs) and a new Code of Practice on preventing sexual harassment.
New York is now ahead of the rest of the US when it comes to sexual harassment protection. The standard for proving a harassment claim has been significantly eased. As of 11 October 2019, a worker can make out a harassment claim if subjected to ‘inferior terms, conditions or privileges of employment.’ They no longer have to prove that the harassment was ‘severe or pervasive’ or that a comparator was treated better or that they filed a complaint internally. An employer’s defence is limited to showing that the harassment amounted to no more than ‘petty slights’ or ‘trivial inconveniences’ to a reasonable victim. Workers can now recover legal fees and punitive damages as well as compensation for financial loss and injury to feelings. NDAs in settlement agreements and employment contracts have been regulated, and mandatory arbitration agreements can be contested. In August 2020, New York will extend the time limit for filing a sexual harassment claim to three years.
Other US states continue to introduce measures to address sexual harassment in the workplace. For example, New Jersey amended its discrimination law in March 2019 to invalidate NDAs in settlement agreements and employment contracts that are designed to stop the disclosure of discrimination or harassment. Connecticut has introduced new legislation on sexual harassment in the workplace, including new policy and training requirements and additional protection for employees complaining of sexual harassment. Sexual harassment training requirements (already mandatory in several states) continue to be rolled out across the US, with Illinois (for example) now also making training compulsory.
Countries outside of Europe and North America are also addressing sexual harassment. For example, in July 2019, Peru introduced tough new laws requiring employers to adopt anti-harassment policies and investigation procedures, provide anti-harassment training, carry out annual sexual harassment risk assessments and (if they have 20 or more employees) set up a Sexual Harassment Committee.
Meanwhile, China is now also proposing tougher laws on sexual harassment, which would include a new definition of sexual harassment and a duty on employers to take reasonable steps to prevent harassment from occurring. The changes look likely to come into effect in 2020.
Moving beyond sexual harassment, there have been a number of notable other developments in discrimination law: Poland has scrapped its list of protected characteristics, meaning that differentiating between employees on any ‘unethical’ ground is now discrimination. Consistent with EU law, Poland previously listed as protected characteristics sex, age, disability, race, religion, nationality, ethnic origin and sexual orientation, as well as political beliefs; trade union membership, creed, employment for a definite or indefinite period of time, and working full-time or part-time. The wording of the new Labour Code, which came into force on 7 September 2019, explains that these protected characteristics are ‘just examples’ and that other characteristics may be unlawful, if not objectively justified. From the same date, Poland also extended the right for employees to claim damages for bullying.
In Hong Kong, the focus has been on the rights of same-sex couples. Following a landmark court case, Hong Kong’s Inland Revenue Department has confirmed that it will allow same sex married couples to apply for joint tax assessment. In another landmark court decision, same sex partners have won the right to enter Hong Kong with a dependant visa.
In June 2019, Japan introduced a new law against ‘power harassment’ (essentially bullying of a subordinate by a more senior employee, including ‘mental attack’ and repeated harsh reprimands). The new law will start being enforced in 2020 and will require companies to develop polices and take preventative steps. Meanwhile, the debate over what women should wear at work has continued, with various media outlets reporting that wearing glasses is not acceptable in some Japanese firms. This follows earlier controversy over high heels and make-up.
South Korea introduced protections against non-sexual workplace bullying and harassment (it already had obligations with regard to sexual harassment).
Peru introduced a new obligation to make reasonable accommodation for disabled employees.
The Dubai International Financial Centre extended its protected characteristics to include pregnancy, maternity and age, and has made compensation for discrimination available.
Ireland has seen a 343% increase in the number of claims relating to age discrimination according to recently published statistics. Forced retirement is the key issue here.
The Netherlands is considering introducing a quota for women on supervisory boards (30%).
Australia is proposing a wide-ranging federal law against religious discrimination, which will have an impact in the workplace as well as schools, hospitals and other public services. In addition to protecting employees from direct and indirect discrimination, the proposed law deals specifically with the issue of statements of religious belief and will regulate the extent to which employers can stop employees from expressing religious views within the workplace. The legislation is expected to progress through parliament in 2020.
In the US, the Supreme Court is currently considering three test cases on the workplace rights of gay and transgender employees. The Civil Rights Act 1964 outlaws discrimination based on ‘sex’ and the question is whether this includes sexual orientation discrimination or discrimination based on transgender status. The Supreme Court has heard argument and is set to rule sometime in 2020.
Finally, California, New Jersey and New York all enacted laws to classify discrimination on the basis of hair style or texture as an act of racial discrimination.
While actual cases have been thin on the ground to date, many jurisdictions anticipate a big rise in discrimination claims involving algorithms and artificial intelligence tools that embed discriminatory stereotypes in hiring and firing decisions. HR teams should tread carefully, not placing too much reliance on automated decision making unless they are sure as to the basis on which those decisions are made.
Has #metoo made a lasting change in organisations? Delegates surveyed at the Lewis Silkin Managing an International Workforce conference in February 2020 responded as follows:
KLIEMT.Arbeitsrecht is a member of Ius Laboris, an international alliance of leading law firms providing specialised services in employment law.