Do international organisations have a positive duty to prevent harassment?
Since the birth of the #MeToo movement, it is more important than ever before that IOs recognise and address claims of harassment. Best evidenced by the adoption of the International Labour Organization’s Violence and Harassment Convention (No. 190) and its accompanying Recommendation (No. 206), the international community has made it clear that violence and harassment will no longer be tolerated in the workplace. This may be especially true for those employees who are returning to the workplace after long periods of working from home during the COVID-19 pandemic.
However, as more individuals are empowered to share their experiences of workplace harassment, IOs are becoming increasingly vulnerable to legal liabilities, reputational damage and potential reductions in government funding. With these challenges in mind, IOs have started implementing mandatory training, but is this enough? Should there be a “positive duty” to prevent harassment from occurring in the first place? This would require IOs to take actual, positive actions to eliminate harassment in the workplace, as well as strengthen enforcement powers to ensure IOs’ compliance with this duty.
Prohibitions Against Harassment
It is safe to say that prohibitions against harassment and abuse, including sexual harassment, are contained within the staff regulations and codes of conduct of all IOs. As summarised in Section 2 of the Secretary-General’s Bulletin ST/SGB/2008/5 (SGB), Article 101 of the Charter of the United Nations and the key principles set out in Staff Regulation 1.2(a) and Staff Rules 102(d), 201.2(d) and 301.3(d) recognise the right of every employee to work in an environment free from discrimination, harassment or abuse.
A proactive duty for IOs to prevent harassment may be inferred through existing mechanisms, such as the jurisdiction of the UNAT and ILOAT. The case law from these tribunals provides accountability and guidance for standard-setting by IOs. In Mbaigolmem, the UNAT held that:
Sexual harassment is a scourge in the workplace which undermines the morale and well-being of staff members subjected to it. As such, it impacts negatively upon the efficiency of the Organization and impedes its capacity to ensure a safe, healthy and productive work environment. The Organisation is entitled and obliged to pursue a severe approach to sexual harassment.
This framework provided a basis for the UNAT to reverse the decision of the UNDT in Adriantseheno, ruling that the accused’s alleged behaviour not only amounted to sexual harassment but justified his separation from service.
Similarly, the ILOAT ruled in G.B. (No. 4) v UNWTO that the internal appeals body of the UN World Tourism Organization failed to fulfill its role by rejecting the complainant’s protests and finalising his claim without further review. Given that the complainant had established a prima facie case of harassment, there was no justification for the conclusion that the complainant’s claim could be closed and finalised.
However, it is important to note that rulings of the ILOAT and UNAT remain an option of “last resort.” This is reflected in R v IOM, where the complainant sought to challenge a decision of the International Organization for Migration not to defer her transfer to Sudan until she was able to find adequate medical and schooling facilities for her disabled daughter. The complainant’s claims were found to be irreceivable as she had not exhausted all internal means of redress before submitting her claim to the ILOAT. Thus, the ILOAT and UNAT are limited in the extent to which they can hear and deal with harassment claims and (beyond issuing damages) rely heavily upon IOs to translate their rulings into “real change.”
UN organisations are also required by their regulations to take preventative measures to protect their staff against any form of prohibited conduct and provide effective remedies where prevention has failed (SGB Section 4). In the discharge of these duties, UN organisations are required to:
- Conduct education programs for all Secretariat staff to raise awareness of the organisation’s zero tolerance policy towards harassment and abuse;
- Require all staff members to complete mandatory online training programs on the prevention of harassment;
- Provide targeted training to heads of department/office/mission; and
- Ensure that managers and supervisors maintain open channels of communication with their staff members.
The same can be expected from other IOs, such as the International Monetary Fund, which offers employees a number of resources to assist in recognising, preventing and resolving harassment. Among other initiatives, IMF also provides training to staff and managers, “to increase awareness of these issues and to promote a work environment that is free from hostility or harassment of any kind.”
Is There a Positive Duty?
SGB Section 3 refers to all staff having a duty to not engage in or condone prohibited conduct, and managers/supervisors have a duty to take all appropriate measures to promote a harmonious work environment. However, this does not necessarily translate into a proactive duty on the organisation’s behalf to prevent instances of harassment. One example of such preventative action could be for IOs to undertake an assessment of workplace culture to identify those formal or informal practices which may contribute to incidents of harassment. The assessment would also need to include recommendations on how to remove such practices.
Under existing regulations, an employer will generally only be liable if: (1) an incident of harassment occurs; and (2) they have failed to take adequate steps to prevent the incident from occurring. This means that without a positive duty, employers must rely solely on existing health and safety laws to manage and eliminate the risk of harassment and abuse in the workplace. This approach places a heavy burden on individual employees, whose only option is to notify someone about the incident and receive a remedy after-the-fact.
If implemented, a positive duty would impose a higher obligation on IOs to eliminate harassment and actively promote equality, even if no incident has occurred. Thus, by taking a proactive and collective approach to preventing harassment, IOs could build upon existing work health and safety laws, by requiring employers to do more than just meet benchmarks, and work towards creating an environment where unfair treatment and antisocial behaviours are less likely to occur in the first place.
What Steps Can IOs Take to Prevent Harassment?
Practical examples of a proactive duty to prevent harassment may be drawn from domestic jurisdictions, which offer important lessons for IOs regarding the implementation and enforcement of anti-harassment policies.
Under the Equal Opportunity Act 2010 (UK), employers have a proactive duty to eliminate discrimination, harassment and abuse as far as possible. This includes taking positive steps to prevent prohibited behaviour from occurring – even before a complaint is made. The Act outlines three key steps for achieving this goal:
- Removing or minimising disadvantages suffered by people due to their protected characteristics;
- Taking steps to meet the needs of people from protected groups where these are different from the needs of other people; and
- Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
Based upon the UK model, Victoria has also introduced the Gender Equality Act 2020 (Vic) which requires employers to take “reasonable and proportionate measures” to eliminate discrimination and harassment as far as possible. This positive duty applies to employers, providers of accommodation, education, goods and services and clubs and sporting services. In order to comply with the positive duty, all organisations set out under the Act must follow six minimum standards to prevent and respond to discrimination, sexual harassment and victimisation. This includes such things as having a gender equality plan that is regularly monitored and evaluated.
The Swedish Discrimination Act 2009 requires employers to “take measures to prevent and hinder any employee being subjected to harassment or reprisals associated with sex, ethnicity, religion or other belief, or to sexual harassment,” and provides the Swedish Equality Ombudsman with a range of compulsion and enforcement powers.
This means that if an employee sues a company for damages after experiencing harassment in the workplace, the employer may be jointly liable with the perpetrator of the harassment unless they can show that they took reasonable steps to prevent the incident from occurring.
The impact of this positive duty in the domestic arena has been tempered by weak enforcement measures, with no real penalty for breaches and a focus on process rather than outcomes. Stronger enforcement mechanisms would therefore be necessary if IOs were to implement a positive duty to prevent harassment in the workplace. Penalties for failure to comply with this duty may range from public “naming and shaming” through to member states imposing financial constraints.
For these enforcement measures to be successful, IOs must also ensure that their complaints mechanism is easy for victims of harassment to navigate and that internal review boards have access to all information necessary to properly investigate harassment complaints.
By doing so, IOs may effectively shift liability from the employee to the employer and recognise the importance of taking preventative measures against harassment occurring in the first place. It is in this space that equal opportunity becomes a realistic goal.
Title photo credit: Herrington Carmichael