On 27 December 2023, the Colombian Minister of Labour highlighted several irregularities found at one of the plants of a well-known fishing company. The following day, the media reported that the company’s female employees “don’t have time to go to the bathroom”. The company rejected the minister’s statements and announced legal action against the ministry.
Regardless of whether the media reports are true, the protections companies are expected to provide in the workplace are coming under increasing scrutiny from authorities and the public. More and more, employers are expected to take measures that go beyond physical working conditions and include the prevention and management of harassment within their workplaces.
A rise in cases
Due to rising numbers of workplace harassment cases and stricter regulations in Colombia and other jurisdictions, this trend continues to gain momentum. According to the International Labour Organisation (ILO), 23% of workers have experienced harassment in their companies, with 17.9% reporting psychological harassment (bullying, discrediting, mockery, discrimination, etc.), 8.5% reporting physical harassment and 6.3% reporting sexual harassment.
The ILO defines harassment in the workplace as a set of unacceptable behaviours and practices, or threats of such behaviours and practices, whether occurring once or repeatedly, that aim to cause, cause, or are likely to cause physical, psychological, sexual or economic harm. This includes gender-based violence and harassment.
The ILO also recognises that there is underreporting of workplace harassment, as only half of those surveyed reported the incident to a family member or friend, and an even smaller percentage used formal or informal reporting mechanisms. In Latin America, these figures can be even more concerning. In Peru, for example, according to the consulting firm Atalla Legal, 25% of women have experienced sexual harassment in the workplace, but only 4% have reported it.
Taking a proactive approach
For employees, the consequences of harassment can include low productivity, anxiety, depression and even suicide risk. For companies, the impacts can be monetary, reputational and legal. In jurisdictions such as Spain, board members and executives can even be financially and criminally sanctioned for failures in preventing and responding to harassment cases. Consequently, companies have greater incentives to proactively investigate and respond to harassment cases.
In Colombia, companies leading this trend tend to be those listed on stock exchanges such as New York or London, which are required to maintain high standards of corporate governance, and companies with foreign shareholders, especially from the US or the EU. This group of companies is joined by some international non-governmental organisations (NGOs), whose stakeholders pay special attention to the prevention, detection and treatment of workplace harassment cases.
In a context where the risks arising from workplace harassment are increasing, what can companies do to mitigate them or, even better, stop them? As with other areas of risk management, prevention is better than correction. Companies with prevention programs usually achieve better resource use and a greater impact than companies that only respond to emerging cases.
Successful prevention programs include, at a minimum, the following five key steps:
- Specific policies and protocols against harassment are created, including commitments to respond and maintain confidentiality of complaints.
- A commitment from leadership to a zero-tolerance culture towards harassment.
- Resources are allocated to carry out proactive work.
- Periodic training on workplace harassment provided to all employees.
- Appropriate and easily accessible reporting mechanisms (such as an ethics hotline) put in place.
It is essential that, when a harassment complaint is received, the company conducts a thorough, independent and effective investigation. The failure to do so has dire consequences, especially for the organisational culture, which is one of the most important assets a company has.
Very few human resources, legal, or compliance teams have the training and resources necessary to investigate these types of cases effectively and aligned with best practices. In many cases, they cannot guarantee the autonomy required for such an investigation. For this reason, there is a growing tendency to bring in an independent, specialised third party to carry out these investigations.
Third-party investigations
Involving a third party in an investigation offers several advantages for both companies and employees. Investigations conducted by an external actor provide greater guarantees of objectivity and impartiality to all stakeholders. A specialised third party can bring technical knowledge and resources that the company may lack internally. Finally, entrusting the investigation to an external party sends a strong message about the company’s commitment to the issue.
It is wise for the investigation team to apply a mixed approach to the case. A combination or traditional investigation elements, such as the methodology of the Association of Certified Fraud Examiners (ACFE), and those of exploitation, abuse and sexual harassment investigations, such as the Core Humanitarian Standard (CHS) model. Given the sensitivity of such cases, the investigation teams should include people from a range of genders and who have knowledge or awareness of gender issues, experience in similar cases, and specialised training and accreditation from expert organisations.
Additionally, due to the sensitivity and complexity of workplace harassment investigations, it is advisable for investigations to focus on the victims and provide them with sufficient protection throughout the process (even after it has concluded, to avoid revictimisation).
A key part of the success of such investigations is the tools used. Typically, a robust and comprehensive workplace harassment investigation involves various activities, including structured interviews, forensic image acquisition, processing and analysis, data analytics and anonymous surveys.
Finally, it is important to conduct these investigations in close coordination with legal advisors. The work carried out by the company (and, if applicable, by external actors) must be admissible as evidence in potential disciplinary, administrative, labour or criminal proceedings. For this reason, each stage of the investigation must include all necessary legal safeguards including confidentiality of information, protection of attorney-client privilege, preservation of the chain of custody in handling physical or electronic devices and information and informed consents, among others.
Commit to act
Workplace harassment cases have increased, as has the attention given to how organisations treat and prevent them. Companies that support their good intentions with effective actions will be able to turn a risk factor into a strength, demonstrating their commitment to creating harassment-free environments to their employees and stakeholders.