The Peruvian government has passed a comprehensive reform of the current anti-harassment framework, including the criminalization of sexual harassment. Legislative Decree No. 1410 modifies both Law No. 27942, Law on Prevention and Punishment of Sexual Harassment, and the Criminal Code to include new safeguards for victims of sexual harassment as well as criminal sanctions against perpetrators.
The main changes include the following:
- Legislative Decree No. 1410 redefines sexual harassment as a form of violence involving behavior (repeated or otherwise) of a sexual or sexist nature or connotation that is unwanted and that creates an intimidating, hostile, or humiliating environment, or affects labor, teaching, training, or any other kind or activity or situation. It is no longer necessary for a victim to prove the rejection of advances or repetition of unwanted behavior.
- Victims of sexual harassment can file a claim for damages and/or losses suffered because of the harassment and/or report it to the National Superintendency of Labor Inspection (SUNAFIL) of the Ministry of Labor.
- Legislative Decree No. 1410 includes antiretaliation provisions to invalidate the discharge of an employee for bringing a complaint or acting as a witness in this type of proceeding.
In addition, the Criminal Code now includes four new crimes4: (i) harassment, (ii) sexual harassment, (iii) the dissemination of audiovisual or audio material with sexual content, and (iv) sexual blackmail. Sexual harassment in the workplace is an aggravated criminal offense that can result in a minimum prison term of four years and a maximum of eight years.
The amended legislation redefines sexual harassment as a form of violence. In addition, it introduces the concept of “gendered behavior” as sexual harassment. This is defined as conduct that promotes or reinforces stereotypes in which women and men have attributes, roles, or spaces of their own that imply the subordination of one sex or gender to the other.
The main new obligations for employers as a result of this legislation are as follows:
- Sexual harassment intervention committee: Employers with 20 or more employees are required to form a sexual harassment intervention committee. For companies with fewer than 20 employees, a delegate will be appointed.
- Internal policy: Employers with 20 or more employees are required to implement an internal policy to prevent and punish sexual harassment.
- Training: Employers must provide mandatory annual training to human resources employees, the sexual harassment intervention committee, and others involved in an investigation of a sexual harassment complaint and subsequent discipline.
- Medical and psychological assistance: Employers must provide medical and psychological assistance to victims.
- Audits: Employers must conduct annual assessments to identify possible sexual harassment situations, causes, and risks.
- Dissemination of information: Employers are required to periodically disseminate information that allows the identification of behaviors that constitute sexual harassment and the applicable sanctions. Likewise, employers are required to inform and disseminate, in a public and visible way, the channels for dealing with claims and complaints.
- Complaints: It is now possible to initiate an internal sexual harassment procedure in three ways: (i) via complaint from the victim, (ii) via complaint from a third party, or (iii) via the employer becoming aware of acts of sexual harassment. Employers are obligated to follow through with this procedure regardless of the whether the presumed victim cooperates.
Employers are required to provide templates for filing a complaint and basic information on the procedure to prosecute sexual harassment complaints to all employees. - Closer interaction with the Ministry of Labor: Employers are required to inform the Ministry of Labor of complaints or claims; the granting of protection measures in favor of the alleged victim; the sanction to be applied, if any; and other measures to avoid new cases of sexual harassment.
Generally, these developments in the area of sexual harassment at work have been regarded as positive steps toward the construction of a violence-free and healthy work environment for employees. However, others have raised concerns about an overly broad approach potentially criminalizing minor slights or even innocent behavior.
In summary, the impact of these new developments on sexual harassment in the workplace, especially in connection with sex-based harassment at work, is unclear. It is clear, however, that employers in Peru will have to take action to ensure compliance with the regulations and implement best practices to prevent sexual harassment. It is hoped that the protocols, guides, and supplementary documents that will be issued by the Ministry of Labor will aid in dissipating employers’ concerns regarding these new requirements.
Written by Iván Blume of Rodrigo Elias & Medrano and Roger James of Ogletree Deakins
© 2019 Rodrigo Elias & Medrano and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.