An imperfect anti-sexual harassment law

A reader asks for advice about a male office supervisor who makes her uncomfortable with his excessive praises over her physical appearance. She says that when he says things like “that blouse shows off your curves and cleavage magnificently” especially in the presence of co-workers, she feels that he is undressing her mentally. Worse, she feels that statements like that suggest to her co-workers that she and the supervisor are intimate and, ergo, the relationship entitles him to make very personal comments. I don’t normally dispense legal advice in my column but I’ll make an exception in this case as it presents an opportunity to discuss a very imperfect law.

It’s easy enough apprising my reader of her rights under the law. But how to deal with the harasser on a day-to-day basis is a totally different matter. If I were in her position, I’d counter with responses like “Thanks, I wish I can return the compliment but the bulge inside your pants is really tiny” or “Oh, I had no idea you are, ummm… that way, but I can tell you where I bought my blouse if you’d like to buy one that you can wear yourself” or “Embarrass me again and I’ll send you to prison.” You get the drift.

But not everyone can thumb their noses at a**holes at work or even in school. Each person will react differently, some will consider statements with sexual undertones to be harmless attempts at flirtation while others will consider them offensive and bordering on sexual harassment. Even among those who feel that they are being sexually harassed, not all will take action. Reasons vary. Some, reminiscent of many rape victims, consider it even more humiliating to complain publicly. Others, especially at work, cannot deal with being labeled a trouble maker and dealing with the added hostility of co-workers. But for people—workers and students alike—who want to know what their rights are, here is the lowdown.

What is sexual harassment? Who can commit it? Where does it happen? Is it unlawful? If, like the reader asking for advice, a superior at work makes public comments about your curves and cleavage, is there sexual harassment? If a male teacher sits thigh-to-thigh next to a male student and stares directly and fixedly at the student’s crotch and the student flees in fear and disgust, is there sexual harassment? If, during an official school trip, a male teacher orders two male students to stand by the open bathroom door while the teacher showers in full view of the students, and the students run off, return to their dorm rooms so that they are safely surrounded by other students, is there sexual harassment?

Under Republic Act 7877, or the Anti-Sexual Harassment Act of 1995, which punishes sexual harassment with a penalty of one to six months in prison, a fine of ten to twenty thousand poses, or both imprisonment and fine, sexual harassment is defined under Section 3 as committed by a person having authority, influence or moral ascendancy over another in a work or training or education environment who “demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted.”

Activists praise RA 7877 as a legal landmark but it isn’t. It’s a very incomplete law as it actually absolves majority of sexual harassers. Under the law, a woman can be the butt of crass sexist jokes and there won’t be any sexual harassment unless she can prove that all or any of it directly affects her continued employment or chances of getting promoted or some other analogous situation. In the same manner, a teacher can leer at a student to his libido’s content and unless the student can show that the leering constitutes an actual request or demand for a sexual favor, then, the student cannot complain about sexual harassment.

Imagine the hostile environment, the mental torture and the emotional trauma. Imagine what it must be like to go to work or school everyday and have to deal with all the crap and not be able to make a case for sexual harassment. A real anti-sexual harassment law will recognize that the essence of sexual harassment is not the demand or request for sexual favors but the intimidation that a person is subjected to because he or she belongs to a particular gender, whether a man, a woman, a homosexual, a bisexual or whatever other categories there are.

Isn’t there any other way to deal with lowlifes who just happen to be persons of authority? Yes, there is. Article 21 of the Civil Code states that any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The word injury covers a lot of ground. It includes mental and emotional trauma. If the company or school head was aware of the situation and did nothing, he or she can be liable for damages as well—this is the principle called the “diligence of a good father of a family.”

For minor students, it should be remembered that when a parent enrolls his minor child in school, there is a contract entered into whereby the school accepts responsibility for the safety and welfare of the child within its premises. If the highest school authorities had been less than diligent in its selection of its faculty and non-academic staff, as when they keep hiring family members, friends and relatives who are not genuinely qualified for the job, and one or some of whom cause injury to a student somewhere along the way, then the school authorities can be held liable for damages as well.

“Damages” mean monetary payment that approximates the extent of the injury suffered. Damages include actual damages, moral damages and exemplary damages. –Manila Standard Today