Important Case Expands Sexual Harassment Protection in the Workplace

Despite general provisions of the Colombian Labor Code, which require good behavior and respect in the workplace, there has been no systematic or consistent legal framework in Colombia dealing with the prevention of sexual harassment in the workplace. However, in a key decision, the Supreme Court of Justice has set some standards that should help victims of harassment.

Although sexual harassment was introduced as a criminal offense in 2008, the Criminal Chamber of the Supreme Court of Justice has addressed the matter in just two cases. In addition, the chamber limited the definition of a “criminal offense” such that a situation qualified as a criminal offense only when there was a relationship of subordination between the victim and the perpetrator. As such, the 2008 law was of limited value in practice.

However, in Luis Carlos Cajamarca Barragán v. Pimpollo S.A., the Labor Chamber of the Supreme Court of Justice adopted a critical position in the struggle against harassment in the work environment, noting that the victims were usually women. The Court upheld the decision of the regional labor tribunal that the dismissal of an employee who conducted undesired and implicit sexual behaviors toward his subordinates was fair.

The dismissed employee had alleged in his defense that he was respectful to his subordinates, avoided explicit sexual touching, and made only “gallant” remarks and invitations to them. In finding against the male manager, the Court introduced clear rules for identifying sexual harassment.

Citing the International Labor Organization’s (ILO) guidelines, the Court held that in order to consider behavior as sexual harassment, the conduct should be not desired, be offensive to the individual, and have a sexual connotation. Further, the Court said that sexual harassment was not limited to explicit physical contact and could also include “any action that may represent an undue sexual requirement that can be made by any means; verbal proposals, e-mails, letters, phone calls, etc.”

The Court also identified and characterized the circumstances in which sexual harassment might take place, indicating that it could be physical (which is not limited to explicit sexual contact), verbal, or nonverbal.

Referring to the ILO guidelines, the Court pointed out that sexual harassment could also take place on a quid pro quo basis (the promise of benefits in exchange for sexual favors) or on a negative basis in which the harasser generates a hostile work environment for the harassed.

Overall, the Court recognized the cultural barriers in the struggle against sexual harassment in Colombia and provided a wide judicial framework to be applied to future employment cases.

Comment

While the volume of criminal cases remains limited, this case should widen protection against sexual harassment in the workplace, establishing a broad definition of what constitutes sexual harassment and protecting individuals of any gender or sexual orientation without limiting that protection to hierarchical relationships.

Written by Carolina Camacho and Daniel Pardo of Posse Herrera Ruiz and Roger James of Ogletree Deakins