Mechanisms for Protection and Prevention of Sexual Harassment in the Workplace: A New Challenge for Employers

The challenge for employers includes:

• Regulation of workplace harassment in labor relations.
• The obligation to include a chapter in the internal work regulations that addresses sexual harassment.
• Swift and effective actions to prevent further harm to victims.
• It must be handled with extreme caution to avoid classifying regulatory actions as criminal offenses.

Through Law 2365 of 2024, the National Government adopted measures for the prevention, protection, and response to sexual harassment in the workplace, applicable to both public and private entities. This means that, despite the existence of previous regulations in this area, specific to criminal law, the Law strengthens protection by including sexual harassment as a form of workplace harassment, focused on protecting the human rights of workers.

This raises an initial question: What is considered an act of sexual harassment in the workplace? It is understood as any act of persecution, harassment, or intimidation of a sexual, lascivious, or libidinous nature, manifested through vertical or horizontal power dynamics, mediated by age, sex, gender, sexual orientation, and identity, as well as job, social, or economic position, that occurs once or multiple times against another person in the work context. Within the workplace, protection against acts that represent sexual harassment applies not only at the workplace but in any setting involving a relationship between coworkers, including: break areas, restrooms, employer-ordered travel, and commutes between home and the workplace.

What role should employers take regarding sexual harassment? The law establishes specific obligations aimed at the prevention, investigation, and sanctioning of sexual harassment, such as:

• Creation of internal prevention policies and response procedures against sexual harassment.
• Adjustment of employment contracts and inclusion in internal work regulations that refer to the response procedures against sexual harassment.
• Establishment of mechanisms for attention and prevention regarding any behavior that constitutes an act of sexual harassment, as well as the implementation of immediate protection guarantees for victims.
• Biannual publication of the number of complaints processed and sanctions imposed.

An important point that employers must consider is the approach provided by the law regarding immediate protection guarantees for workers who are victims of acts of sexual harassment, as follows:

• Protection measures must be immediate. In this regard, there will be a maximum period of 5 working days to take preventive measures against acts of retaliation towards victims.
• Mechanisms for support must be established within the company, specifically aimed at assisting victims of acts that may constitute sexual harassment.
• Anyone who considers themselves a victim of an act of sexual harassment may request, as a protection mechanism, alternatives that could range from relocation within the workplace to termination of the employment relationship of the harasser, without requiring prior notice from the employer. Notwithstanding the authority granted to workers by the law to request protection mechanisms, it is ultimately the employer who defines which alternative should be implemented, taking into account their operational organization.
• Special protection for victims of sexual harassment is manifested in that any termination of the employment contract occurring within 6 months following the filing of a complaint regarding acts of sexual harassment will be without effect.

Ultimately, it will be the National Government, led by the Ministry of Labor, that must develop a Comprehensive Plan for the elimination of sexual harassment in the workplace and in higher education institutions within a period of 12 months, where general guidelines for policies, protocols, and response procedures will be adopted.

Therefore, it is essential that employers take immediate preventive actions regarding their employees, aimed at preventing any behavior that constitutes not only an act of sexual harassment but also an act of discrimination focused on gender. It is also important for them to have legal counsel to ensure greater rigor in the actions of prevention, investigation, and sanctioning of behaviors that may constitute acts of sexual harassment in the workplace, thus avoiding potential penalties from administrative authorities. Similarly, legal advice is crucial when addressing any situation that may represent a conduct of sexual harassment, as it will be necessary to verify the appropriate and strategic legal strategy to apply.

Do not hesitate to contact Brick Abogados if you have any concerns or if you would like more information on the previously discussed topic.

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This document is for informational purposes only and does not constitute legal advice, nor does it compromise the responsibility or professional opinion of Brick Abogados.