Asia has been slow to address sexual harassment in the workplace. Vietnam is laying the first bricks to build a legal framework. The new Labor Code (“New Labor Code”), which takes effect on January 1st, 2021, makes clear that sexual harassment in the workplace may be disciplined. The New Labor Code does not state which specific acts constitute sexual harassment. It leaves details to the employer. This article discusses the evolving framework and offers some suggestions.
What is sexual harassment?
Article 3.9 of the New Labor Code states “sexual harassment in the workplace means any sexual act of a person against another person in the workplace against the latter’s will”. This definition is aligned with international understanding as specified, say, in Convention no. 190 on Violence and Harassment (“Convention 190”)1, which was adopted in June 2019 by the International Labor Organization (“ILO”), of which Vietnam is a member.
The New Labor Code does not define specific misconduct. The New Labor Code specifies that the employer may define sexual misconduct.
To be actionable in Vietnam, specific misconduct must be set forth in a company’s Internal Labor Regulations (“ILRs”) and the ILRs must, of course, be registered with the Labor Department. The conduct, if proved, may be disciplined. If a company’s ILRs do not specify the offensive conduct, the company may not impose labor discipline2. In other words, without a definition of unacceptable conduct in its ILRs, set out either broadly or in detail, there is no basis to apply labor discipline.
For a simple understanding, any sexual conduct that causes a person to feel offended, humiliated, manipulated or adversely affected can be considered to be sexual harassment. Sexual harassment can take many forms. However, to avoid uncertainty, an employer should opt for more detail. Unwelcome sexual harassment needs definition to be actionable. The victim and the harasser do not have to be of the opposite sex and the harasser is not always man. The features below identify general categories of sexual harassment. More detail will bring clarity. One distinguishing feature is the nature of the misconduct; the other is the person who commits it.
- Nature of the misconduct:
Physical sexual harassment: This is the most easily identified form of harassment. It can range from direct touching to, say, preventing a person from leaving the room, but without contact.
Verbal sexual harassment: Making a slur, catcall, humiliating comment, or even calling a person an offensive nickname with a sexual context, such that the aggrieved person feels discriminated against or is demeaned is a form of sexual harassment.
Visual sexual harassment: A lewd gesture, glance or look, drawing a picture of the aggrieved person, showing sexual pictures or videos to the victim, etc. are acts of sexual harassment.
- The person who commits an act can change the nature of the misconduct:
Quid pro quo: means “something for something”. In this context, a person who is in a position of authority expresses or implies giving a benefit in exchange for a sexual favor or threatens to punish a subordinate, unless a sexual favor is given.
Hostile work environment: This is less specific but refers to a hostile work environment which is either sexually intimidating or demeaning, and this negatively affects a person’s job performance.
What employers should do to protect their employees from exposure to misconduct?
The New Labor Code allows an employee unilaterally to terminate his/her labor contract without notice if he/she is sexually harassed3. Companies should assure that, like any conflict in the workplace, there is a process in place to protect the victim so that the victim’s option to terminate the labor contract is not the preferred option. But one must be sure that the rights of the accused are respected.
- What conduct is targeted?
As the New Labor Code gives each employer the right to provide a specific definition of sexual harassment, employers should begin by defining unacceptable conduct and where it applies. The definition above is rather general. An employer should create a more detailed definition based on its working environment and to avoid uncertainty and conflict.
- What spaces are protected? What is the “workplace”?
It is important to specify where the rules apply. The New Labor Code generally describes the workplace as “the location where an employee works under agreement or as assigned by the employer”. The ILO Convention 190 provides a more detailed definition. Employers can adopt this guidance or create their own appropriate definition:
“This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:
(a) in the workplace, including public and private spaces within a place of work;
(b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;
(c) during work-related trips, travel, training, events or social activities;
(d) through work-related communications, including those enabled by information and communication technologies;
(e) in employer-provided accommodations; and
(f) when commuting to and from work.” 4
- What discipline will apply?
The New Labor Code stipulates the four levels of labor discipline which can apply to any offence, involving sexual harassment: (i) reprimand; (ii) delay of a wage increase for up to six months or removal of the offender from his/her position; (iii) demotion and (iv) dismissal from employment5. Each employer should specify clearly which disciplinary sanction can be imposed depending on the gravity of the sexual harassment. Sexual harassment, like other forms of unacceptable behavior permits application of discipline to the offending employee. Of course, to apply labor discipline, the employer must be sure there is a prescribed disciplinary process in place in the company.
What employees should do if the ILRs are silent?
What are the consequences if there is an event of sexual harassment, but either there are no ILRs or the ILRs are silent on the matter? There are really only two, related but inadequate responses, at the moment.
- Conduct subject to administrative sanctions.
Decree 167/2013/ND-CP of the Government dated November 12, 2013 provides that the Government can apply an administrative sanction in a case of “public harassment”. In practice, some acts of workplace harassment have been considered as “public harassment” and have been resolved in accordance with this Decree. The Decree stipulates that “a person who makes harsh gestures, teases, insults the honor and dignity of another person may be subject to a warning or a fine of VND100,000 to VND300,000”. Firstly, it calls for the Government, not the employer, to sanction the offender. The government agency responsible is the local Police Department. The victim must provide evidence to the police. However, the entire process is not satisfactory. Consider first that the act must be public. It does not target the workplace and the employer cannot apply discipline. It requires a public expression, public proof, a governmental administrative process, action by legal authorities, and the penalty is small. Even if a person is proved to have acted in a way that results in an administrative sanction, once a fine is paid the employer has no remedy. There is no element of workplace discipline. This is not really a workable response in most cases.
- Harassment as a crime
If harassment is more serious and actually constitutes a crime as set out in the Penal Code 2015 (“Penal Code”)6, the aggrieved person has the right to denounce the crime to the police, the Procuracy Department or the Court, either in writing or verbally. In such case, the matter is resolved by Court in accordance with the Criminal Procedure Code. The criminal acts proscribed by the Penal Code generally anticipates a very significant criminal act, usually well beyond sexual harassment in the workplace and there are no specific grounds for termination of employment.
Sexual harassment is difficult to establish as a basis for either administrative sanction or as a basis for criminal action. Moreover, the remedy is not appropriate to the workplace environment. But sexual harassment is a fact in the workplace and the New Labor Code provides a solid way to address it. One needs registered ILRs and the ILRs must set out in some detail the unacceptable conduct. If so, the unacceptable conduct provides legitimate grounds to discipline and even to dismiss the offending employee.
1 Section I. Definition, Article 1.1 of Convention 190
2 Article 127.3 of the New Labor Code
3 Article 35.2 of the New Labor Code
4 Section II. Scope, Article 3 of Convention 190
5 Article 124 of the New Labor Code
6 Article 131 (Inciting or aiding another person to commit suicide), 133 (Threat of murder), 134 (Deliberately inflicting of bodily harm upon another person), 141 (Rape), 143 (Sexual abuse), 155 (Insulting another person), and 156 (Slander) of the Penal Code.