During 2018 we saw the ongoing impact of the #MeToo movement on harassment law and practice around the world. As we enter 2019, this sharp global focus on combating harassment is expected to continue. Here are five trends we expect to see regarding the direction of travel in this area for 2019.
- In many countries, sexual harassment remains at the forefront, which has led to increased scrutiny and regulation from Governments. In the US, 2018 saw the introduction of numerous initiatives at the state and local levels designed to combat sex-based harassment and discrimination, most notably with legislation passed in California and New York, as well as some efforts at the federal level. While additional US changes are sure to come this year, there have also been widespread developments outside the US. For example, in the UK, the Women and Equalities Committee made recommendations for change and, in December 2018, the UK Government reported on the proposals it plans to take forward. Other countries have also proposed tightening laws on sexual harassment. In France, from 1 January 2019 large employers (i.e., generally those with more than 250 employees) must have a point person to support employees who raise allegations of sexual harassment. Denmark has just proposed a draft law to increase compensation for sexual harassment claims. Further, Saudi Arabia introduced new anti-harassment laws in 2018 requiring employers to take appropriate measures to prevent harassment at work (notably the sanctions for individuals who are found to have harassed another person can include imprisonment and/or a penalty).
- Although sexual harassment claims are often the most widely reported, there are other forms of harassment which are becoming increasingly common, such as bullying and power harassment. In Canada, legal definitions of harassment and bullying have broadened in recent years. There has been a move away from defining harassment in terms of the prohibited grounds of discrimination under human rights law (i.e., sex, race, disability, etc.) to a more general definition of workplace harassment as comment or conduct in the workplace that is vexatious and that is known (or ought reasonably to be known) to be unwelcome. As a consequence, in addition to the “usual” claims of sexual harassment, we are seeing more claims that are not specifically about sexual, racial, etc. harassment, but rather concern “unwelcome” behaviour. In Ireland, we have also seen that more generalized “bullying” complaints are on the increase as compared to “pure” harassment complaints related to a protected category (i.e., sex, race, disability, etc.). Moreover, in particular in Japan and India, power harassment complaints are widespread.
- The rise in the number of all forms of harassment complaints is expected to continue. In the UK where we often see ‘traditional’ discrimination/harassment claims (usually on the grounds of sex or race), there also appear to be more claims being pursued on other grounds such a religious or philosophical belief or political opinion. Equally in India, following the Sexual Harassment Act being brought into force in December 2013, there is now a heightened sense of awareness amongst female employees on their rights to protection and redressal. Per the annual reports released by the Indian National Commission for Women, the number of workplace sexual harassment complaints received by the Commission increased from 65 in 2009 to 414 in 2015 to 570 in 2017. We expect to continue to see this increase as employees become more willing following #metoo to ‘call out’ all behaviours that may offend them in the workplace. In some countries, these harassment claims can be more likely to arise when an employee receives a poor performance review or otherwise faces trouble at work. However, there are also many legitimate claims and a heightened public sensibility to address such complaints appropriately.
- Even where the recent spotlight on harassment in the workplace has not led to new legislation, it has gathered media attention and shone a spotlight on how harassment and complaints are dealt with in the workplace. This will continue to be an important social issue and employers are taking note and generally exercising greater care when dealing with allegations of harassment. Regardless of the grounds for harassment complaints, moving into 2019, it is clear that it is essential to educate workforces on how to handle harassment allegations. In several countries anti-harassment training is now mandatory, for example, in most Canadian provinces and some US states. In many countries, such as Colombia, Belgium, France, and India, it is also mandatory for employers to have an anti-harassment policy. Even where anti-harassment training and/or policies are not mandatory, generally they are strongly recommended as a best practice (given failure to train the workforce and have policies can expose the employer to liability). In most countries, an employer will be liable if it fails to protect employees from harassment in the course of their employment. So training and having policies is in practice typically required to minimize risks (i.e., to show that all practicable steps were taken to provide a safe workplace).
- As harassment will continue to be a hot button issue in 2019 (with case law and legislation regulating this area on the increase), we expect to see employers implementing higher local standards with a focus on deterring any workplace behavior that could attract legal risk or liability. Rather than having a “one size fits all” global approach to combating harassment and addressing complaints, employers are increasingly investing time in tailoring harassment policies and procedures to ensure that they meet the requirements of the developing local laws. It is increasingly recommended to take such a bespoke approach to best mitigate the risks of claims in this very high profile area. Across the globe, there is a growing expectation of the need to take action to combat harassment, so employers are advised to dedicate some quality time to demonstrate that they have considered this on the local level. The US may have been at the epicenter of the #Metoo movement in 2018, but the ongoing effects will increasingly need to be addressed on the international stage during 2019.
For more details on preventing workplace harassment on a global scale, preview our International Workplace Harassment Training course.
Editor’s Note: Emtrain Expert Ute Krandewagon also contributed to this post.