Sexual harassment at work in Chile
1. introduction
The topic of sexual harassment at work has often remained hidden in the scope of conversations and work discussions, mainly due to its ambiguity to be evaluated and considered, and the psychological, emotional and moral consequences of the person in terms of victim and offender.
Inserted within the framework of the modern company and its flexibility regulations, the subject can be approached from different perspectives: work, in terms of its aspect of precariousness and deregulation due to the lack of complete definition of the concept; psychological, as for the psychological, emotional and moral damage of the person; judicial, regarding the precarious legislation on the subject, since there are no real mechanisms to implement sanction for the harasser and protection for the victim.
In this sense, the topic becomes ambiguous and difficult to grasp as the perspective of all cases begins to be seen. Without pretending to justify the fact that there is still no real measure of application, due to the difficulty of grasping the subject by a central axis, this work attempts to reflect at least four aspects:
First, a framework for understanding and locating the problem in the context of the modern business world. Second, an attempt is made to review an overview of the situation in terms of the formulation of the problem in its real terms, or at least in consideration of the maximum of its implications. Third, some data is presented on the reality of the problem in Chile and the way in which the issue is addressed in the country. Finally, some considerations are made that seem relevant to the subject in question.
2. Framework of labor flexibility vs. deregulation
The term of labor flexibility often presents two valid planes of understanding: first, as a mechanism of adaptation of the company, since the company that does not adapt to the changing external environment, disappears. On the other hand, it presents a series of aspects of deregulation, to the detriment of the worker, which raise important ethical, justice and exploitation issues to consider.
As an adaptation strategy of the modern company, it manifests itself in various levels of general management and specifically human resource management, involving all the work of the company. In this sense, the following dimensions can be distinguished (Avendaño, 2001):
- Internal numerical flexibility: The size barriers of the workforce are lost, that is, the number of workers ceases to be stable, adapting to the demands of the production market. The hiring mechanisms change, being these in turn flexible in terms of salary, working hours, contract duration, etc.
- External numerical flexibility: The production process is made more efficient by subcontracting services externally to other companies specialized in them. There would be an intermediary between employer and employee and resources would be concentrated to the actual production or service of the company.
- Functional flexibility: Human resources become multifunctional, that is, the potential for learning and adaptation is flexible, and new skills and knowledge are acquired as new situations require.
- Salary flexibility: Salary is linked to the person's performance and real productivity and is translated into tangible assets.
In the other sphere, the advent of flexibilization, with all its advantages for business development, has developed a parallel reality that is often adverse for the worker, as his social security, the legislation that protects him and his own work become uncertain. and insecure. Hours, wages and the scope of labor relations begin to present a loss of limits as soon as it adapts to the requirements of the current situation, and human relations become the decisive axis of the negotiation regarding what it should and should not be done, there being a deregulation of the norms and guidelines contemplated for those who do work. In this case,deregulation is spoken of "when some employers understand that productive modernization involves making the code of labor standards more flexible" and the standards are omitted or ignored as soon as they hinder the "innovative spirit of the employer" (Guerra 1995).
The set of social norms that are established in the interaction between employee and employer and that regulate their functional relationship can be understood as "rules of the game", and include: the regulation of contracts and employment relationships, bonuses, overtime, working hours, aspects of social security, rights and unions. These rules are framed in the greater regulation that would be the State mechanisms to regulate the situation in the event that one of the parties violates the rules (Guerra 1995). However, and as will be reviewed later, the legislation often goes one step back in regulating illicit situations that go directly to the detriment of the employee who is defenseless in the face of the possibility of mental, moral and loss of employment..
Precarious or atypical employment, then, is one that breaks with the traditional schemes of the classic employment relationship. "This type of employment is characterized by the lack of protection of the worker by labor legislation and social security" (Guerra 1995)… being "impossible not to point out that the idea of precariousness includes differentiation and progressive erosion and loss of general guarantees linked to the normal employment relationship and deterioration in working conditions ”(Rodgers 1992, in Gonzalez 1997).
A topic touched on the sidelines by its implications in the deregulation although it is licit in the business task is the one of the labor subcontracting. In these cases, it is argued that subcontracting presents a high degree of indefiniteness regarding the employee-employer relationship and the way the employment relationship is regulated (González, 1997).
Finally, a variable that aggravates the problem and is very contingent to our country is the high unemployment rates (chair of classes in Human Resources Management, 2001). In this sense, the possibility of losing the job leads to an acceptance by the worker who in another condition would have claimed for justice and dignity, and today prefers to resign himself with damage to his physical, mental or moral health.
3. The taboo of sexual harassment
According to the definition set out in the article on sexual harassment at work (Henríquez 1999), it would be a behavior of a sexual nature or with connotations of this nature, not desired by the people to whom it is directed that has an effect or threatens the labor situation of the latter. Within this definition there are several distinctive and important concepts, such as the differentiation between the acceptance or non-acceptance of the victim and the legitimate heterosexual attraction, or the effects according to their rejection or acceptance regarding their hiring, promotion, promotion, health or well-being at work (Henríquez 1999).
When mentioning previously the labor scopes involved in the precariousness of work, a bibliographic and referential review was made on the aspects in which workers are affected. When reviewing these texts, the relevance of the topic to be discussed next came to light due to the fact that it was not explicit in most of the texts dealt with. According to Ricardo Reyes, chief of staff of the work KOLPING CHILE (2000), the issue of sexual harassment at work, as well as that of Labor Discrimination, is left aside from what Labor Relations is mainly due to a cultural problem. Parliamentarians are reluctant to assume the problem as a matter of political contingency within companies and of interest to government legislation,and they prefer to consider it only delicate and subject to being elaborated in the future.
In this sense, the conception of sexual harassment is perpetuated as a particular issue of the privacy of the people involved, lowering the severity profile of the mental and moral consequences for the people involved to a large degree (Reyes, 2000).
On the other hand, sexual harassment itself constitutes a form of discrimination in that, although in theory it can affect men and women interchangeably, in practice the majority of those affected are women. It is also discrimination, because such behaviors denote a vision of inferiority of one sex with respect to another (Silva 1999).
The reasons that explain this reality would be of a cultural nature, since women continue to be devalued in relation to their real professional and work capacity. Furthermore, there is a generalized practice that makes such conduct legitimate, as there are no adequate channels for reporting and legal protection and for an effective possibility of sanction, repeating and remaining in impunity (Silva, 1999).
On the other hand, there is a strong subjective load that makes it difficult to determine the act of sexual harassment. There may be certain acts, words, innuendoes, or gestures that may seem offensive to a certain person but not to another. It is very difficult to define an objective definition that covers the majority of cases and is concrete enough not to legislate only on extremely serious cases. These are behaviors that can be evaluated according to a real judgment of gravity and offense for the victim, causing real harm to the dignity of his person (Silva, 1999).
Finally, the issue is further diluted when a subtle difference is raised between the aforementioned in terms of negotiating hours, hours, wages or type of employment relationship on a formal and informal level. In this sense, sexual harassment in all its nuances can be difficult to define or evaluate as it is subject to the perception of both actors regarding what is right or wrong in an employment relationship. In perhaps clearer terms, it is not strange to suppose that in a work environment where highly informal communication is handled, as a result of the modern company and the good work climate, ambiguous situations of informality appear where the limit between what is appropriate and what is not adequate be diffuse and poorly defined.
Chilean reality
Lazo (1995) cited in Henríquez (1999) alludes to a study by the International Labor Organization in 23 industrialized countries, in which the proportion of women workers affected ranges from 15 to 40% in different countries. In countries like the US or Spain, the figures are even higher. In Chile, existing data from 1991 indicates that 20% of those surveyed have been victims of sexual harassment at work and 84% recognize it as an existing phenomenon. Regarding the reporting of cases, the Labor Inspectorate has received only 49 complaints since 1997 to date, and it has been noted that of the resignations received, in most cases the harasser is a known person in a situation of power over the victim. It is estimated that 25% of cases are reported,and of this percentage, 26% cannot resolve the intervention of the Labor Directorate because they lack legal support (Reyes, 2000).
The Chilean reality and the legal framework
The actions that can be taken to obtain the sanction of such conduct are in the opinion of Lazo (1995) quoted in Henríquez (1999): the remedy of protection before the Court of Appeals, the recourse to the labor courts and the supervision by of the Labor Directorate.
• Recurrence to the courts is still a little used way. Although lawsuits could be tried and judicial and administrative mechanisms could be put into practice, in Chile the custom that requires specific laws to resolve each issue has prevailed. Hence, there are no judicial sentences to sanction these events.
• The administrative route, that is, the recurrence to the Labor Directorate, is usually seen by workers as a close and accessible body when seeking protection. However, the supervisory function of the Directorate is not so clear in the matter of sexual harassment, as it says that "what is not legally prohibited, is allowed".
• In other sources (Silva 1999), Hernán Silva, a lawyer from the Concepción Bar Association, points out that "most situations of sexual harassment fit perfectly into the provisions of the Chilean penal code that has governed one hundred and twenty years, and can be sanctioned with it. What happens is that, as in many other issues, it is that its content and all its possibilities are ignored or forgotten and it is not successful to take advantage of the innumerable virtualities that throb within it »…« Indeed, article 296 Punishes those who seriously threaten others with causing or causing an offense to their family, as long as it appears from the antecedents that the fact is achieved (…) according to whether or not the purpose has been achieved (…).
A bill that defines sexual harassment is in process in Chile as: "Behavior of an unwanted sexual nature by the affected person, which has a negative impact on their work situation causing harm to them." According to the National Women's Service (SERNAM 2001), «the State has the obligation to guarantee to all workers, women and men, opportunities in access, permanence and progress in employment, seeking maximum welfare in the place where they work ». SERNAM takes responsibility for promoting public policies that improve the working conditions and quality of employment for women. In this context, SERNAM drafted a substitute indication to the Draft Law on Sexual Harassment where, in addition to the definition set out above, it complements:… such behavior may consist of one or several actions repeated over time, which will be decided by the judge, taking into account the seriousness of the behavior. The substitute indication also modifies the Labor Code, establishing, on the one hand, that sexual harassment constitutes a special form of discrimination contrary to the principles of labor laws, and, on the other, establishing such conduct as the cause of termination of the employment contract, raising the compensation to which it may give rise to 100%. Together, the Administrative Statute and the one that governs all municipal workers are modified in relation to the administrative responsibility of the officials, expressly prohibiting sexual harassment, and establishing a disciplinary measure for those who incur it. Actually,It is in the First Constitutional Procedure in the Working Commission of the Chamber of Deputies.
4. Conclusions
In this section, there are two topics considered important to deal with. One is the issue of the subjectivity involved in the sexual harassment conflict at the level of the parties involved and the type of regulatory measures to implement.
In the first theme, various aspects come together. First, as it was raised in the subtopic of sexual harassment seen as taboo, the attribution and value judgment that the victim makes in a situation of harassment appears. From a strictly psychological point of view, it can be seen how reality is personal and unique according to the personality characteristics themselves, and therefore, the same situation can be seen differently according to the observer. According to this, what for one person may be a clear situation of sexual harassment, for another it may not be (Rapaport, 1999). Referring to the subject of personality psychopathology, for example, if a person presents a paranoid personality style, it is very likely that they will see permanent threats to their integrity and capacity around them, with the consequent risks of job loss.
Often those accused of sexual harassment express that the victim is to blame for the harassment, according to their way of dressing or way of acting they explain and justify that they are besieged (Labor Directorate, cited in Henríquez 1999). In this sense, if we continue with the terminology of personality styles, a histrionic personality fits with the characteristics exposed by the accused: extremely provocative clothing, adjusted to the body, insinuating, sensual and inviting gestures, and that, at the time of that the aforementioned accepts the insinuation, the person slips away, claims abuse of power and then accuses the "victim" (who would be the stalker) of sexual harassment.
As stated above, the topic calls for a precise and psychological evaluation of each particular case to determine the real and / or fantasized circumstances regarding the harassment. As can be concluded, it is very likely that in many cases it is rather an attribution history rather than a factual one.
However, this argument cannot serve to justify not taking action in this regard. As it was also expressed in the subtopic of sexual harassment as taboo, the boundary between what is informal companionship relationships and what is itself a siege is often lost. If legislation is passed on the subject, there may be abuses of the law for transforming sexual harassment into a situation that is vulgarly not for taking personal advantage. There may even be many forms of personal revenge towards the employer for various reasons, resulting in countless complaints of harassment, leaving the law at the expense of the employer.
Finally, allusion is made in the field of labor legislation (Reyes, 2000) to unionism in Chile, and collective bargaining. "Thanks to the seed planted by unionism, companies have gradually understood that if their corporate objectives are identified with the particular objectives of their workers, they will experience greater performance and productivity, thus achieving an equitable development for both parties." In these terms, it is proposed that the best way to solve the problem of sexual harassment and discrimination at work and its consequent moral damage, is through a body of workers who propose mechanisms for detecting and managing abnormal situations at work, in a framework of negotiation with the employer, where a consensual definition on the matter is determined together,parameters of action, modality of protection for the complainant and terms in which the law will be used if necessary.
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