Argentine Case Law Compensates for Gaps in Sexual Harassment Legislation

In Argentina, the #MeToo movement widely uses the slogan #NoEsNo (no means no). As elsewhere, there have been a number of cases that have emerged, including against a famous actor.

However, surprisingly, regulations specifically prohibiting sexual harassment in the workplace only apply to the public sector. A bill aimed at extending protection to the private sector was filed, but the time period for it to be discussed in Parliament has expired. However case law is developing to provide some protection based on safety and health legislation.

In the absence of more specific legislation, victims seek to rely on Section 75 of the National Employment Law (NEL), which requires employers to provide a safe workplace. Case law has expanded the scope of this duty to cover an obligation to provide a healthy workplace free of any kind of violence, including moral or sexual harassment or discrimination, and a requirement to avoid physiological harm to employees. Case law has established that:

• Companies may be held liable if, they know of the existence of a hostile workplace and did not take measures to prevent such a situation (breach of the employer’s safety duty).
• An employer may be held liable for the acts of its employees when damage is caused during the performance of the employee’s services.
• Constructive dismissal is justified if the behavior of a co-worker amounts to harassment and the company did not take sufficient measures to stop it. This amounts to a serious breach of the employer’s obligations, which prevents the continuation of the employment relationship.

Human resources departments may take the following approach to harassment investigations:

• Implement a confidential method for employees to report abuse.
• Ensure confidentiality is preserved during the investigation so as to protect the victim, the alleged harasser and others involved in the situation.
• Respect the constitutional right to privacy of all employees affected.
• Take appropriate measures to protect the victim during the investigation (such as avoiding further contact between the victim and the alleged harasser).
• Consider disciplinary measures in cases of false claims of sexual harassment.
• Impose disciplinary measures if harassment is found to have occured. Depending on the seriousness these may range from a warning, to dismissal with fair cause.

Employers may also dismiss the harasser employee with cause, provided that the employer may prove the grounds for the dismissal. If the employer has evidence to establish grounds for dismissal, the employer is not required to pay any severance compensation to the employee.

Comment

There is another movement that originated in Argentina called #NiUnaMenos, which has been spreading through Latin America since 2015. It campaigns against violence, sexual abuse, and femicide and is mainly known for demonstrations performed each year on June 3.

Despite these movements and the influence of the global #MeToo movement, statistics show that violence against women is increasing rather than decreasing. Many commentators believe that the government and legislators need to do more to address the problem, such as improved legislation covering all workplaces.

Written by Mercedes Balado Bevilacqua and Cecilia Acosta of MBB Balado Bevilacqua Abogados and Roger James of Ogletree Deakins

© 2019 MBB Balado Bevilacqua Abogados and Ogletree, Deakins, Nash, Smoak and Stewart, P.C.