What is sexual harassment in the workplace?

Sexual harassment in the workplace is determined based on behavior, space, and time of performance. What do we need to be clear about sexual harassment and what is workplace sexual harassment?

What is sexual harassment?

Sexual harassment is generally understood to mean conduct of a sexual nature by a person against another person at any time and space that is not desired or accepted by that person.

What is sexual harassment in the workplace?

This is a sexual act committed by any person against another person in the workplace that is not desired or accepted by that person.

Clause 9 Article 3 of the Vietnam Labor Code 2019 stipulates as follows: "The workplace is any place where the employee actually works under the agreement or assignment of the employer."

Sexual harassment in the workplace is clearly defined in Decree 145/2020/ND-CP including:

- Physical behavior includes actions, gestures, contacts, impacts on the body of a sexual nature or sexual cues;

- Verbal sexual harassment includes direct verbal, telephone or via electronic means with sexual content or sexual implication;

- Non-verbal sexual harassment includes body language; display and depiction of visual material about sex or related to sexual activity directly or via electronic means

Thus, it can be seen that acts that are harassing and carried out in places where the employee actually works as agreed or as assigned by the employer are considered “sexual harassment in the workplace”. Harassing co-workers outside of the workplace is not considered “sexual harassment in the workplace.”

Specifically, in the Judgment on individual labor dispute on disciplinary action against dismissal No. 01/2018/ LD-DST, which is adjudicated by the People's Court of Tu Son Town, Bac Ninh Province:

"On April 5, 2017, the workshops in the company held football exchange, this is just a spontaneous activity. After the festival, Mr. K and Mrs. H rented Mai Linh's taxi together to go home. In the taxi, Mr. K had touched the sensitive place on Mrs. H's body, Mrs. H resisted but Mr. K did not stop. Therefore, Ms. H sends a denunciation to the Company's leader.

On May 30, 2017, Mr. Pham Quang K was invited by the Company to work under the denunciation. On May 31, 2017, the Company issued a "Dismissal" decision for Mr. K. Mr. K instituted a lawsuit requesting the Court to declare the "Dismissal" Decision unlawful."

The court said: In the minutes of the meeting, Mr. K acknowledged having made a joke and was pushed out by Mrs. H in her hand and asked him to sit away. Ms. H affirmed that on the evening of April 5, 2017, when two people in the same taxi came home, Mr. K had the behavior "Touching the chest, touching the thighs... she and she protested by pushing Mr. Ky out but Mr. Ky still did". Therefore, there were enough grounds to determine Mr. K had the behavior "Harassment". However, considering the space of time Mr. K performed the behavior on the taxi that the two people hired themselves after the two people participated in extracurricular activities organized by the company was outside the scope of labor relations, not in accordance with the scope of adjustment in labor relations, so the company applied the dismissal form to Mr. K is unlawful.

It can be seen that, in addition to the behavior, the subject needs to consider the time and space characteristics to determine whether it is "sexual harassment in the workplace" under the provisions of the labor law, to consider the application of appropriate sanctions.

Recently, the Ministry of Labor, War Invalids and Social Affairs, Vietnam General Confederation of Labor, Vietnam Federation of Trade and Industry (VCCI) has just finalized the draft code of conduct on prevention of sexual harassment in the workplace, supplemented and updated based on the Code of conduct on prevention and control of sexual harassment in the workplace issued in 2015.

According to this draft code of conduct, sexual harassment will be identified in three forms: physical, verbal, non-verbal harassment. In Detail:

- Harassment by physical behavior such as physical actions, gestures, touching sexual bodies or sexual cues, such as intentional unwanted touching, touching, stroking, pinching, hugging, or kissing; sexual assault, rape, rape...

- Verbal harassment: Using direct speech, via telephone, or electronic means with sexual content, sexual implication, inappropriate social and cultural comments, rude speech, comments on someone's clothes, body when present or directed at them, personal and private requests for outings in a continuous manner...

- Non-verbal sexual harassment: Include body language, display, depict visual material about sex or related to sexual activity, look sexually, blink repeatedly, show indecency, use finger gestures, display pornographic material, send photos, objects, messages related to sex.

Thus, according to the draft, a person who only needs to act sexually, winks constantly is also considered sexual harassment.

Thereby, Vietnamese law increasingly pays attention to the issue of sexual harassment in the workplace, actively promulgates regulations and codes of conduct to limit this situation and ensure fairness for those who are harassed.

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