Solutions for dealing with sexual harassment in the workplace

The concept of sexual harassment in the workplace was first codified in the 2019 Labor Code, establishing a solid legal framework and marking an important step forward in protecting employees from workplace sexual harassment. In cases of sexual harassment, depending on the nature and severity of the behavior, victims have several legal options for resolution. This article presents the relevant regulations and solutions for addressing sexual harassment in the workplace. 

1. Concept of sexual harassment in the workplace 

Although sexual harassment in the workplace had been addressed before the 2019 Labor Code was enacted, the concept of sexual harassment was officially codified for the first time in the 2019 Labor Code. According to Clause 9, Article 3 of the 2019 Labor Code, sexual harassment in the workplace is defined as: “Sexual behavior of any person toward another person in the workplace that is not desired or accepted by that person. The workplace is any place where the employee actually works according to the agreement or assignment of the employer.” 

Based on this provision, for an act to constitute sexual harassment in the workplace, three criteria must be met: (i) The behavior is sexual in nature; (ii) The behavior is unwanted or unaccepted; and (iii) The behavior occurs in the workplace.2 

Although current legal documents do not provide a specific definition of “sexual behavior,” Clauses 1 and 2, Article 84 of Decree No. 145/2020/ND-CP identify sexual harassment in the workplace as including the following forms:  

  1. Physical behavior: actions, gestures, contact, or physical impact of a sexual or suggestive nature; 
  2. Verbal sexual harassment: spoken words, phone calls, or electronic communications containing sexual content or sexual implications; 
  3. Non-verbal sexual harassment: body language, displaying, or describing visual materials of a sexual nature or related to sexual activities, whether directly or electronically. 

In addition, sexual harassment in the workplace may occur in the form of exchange-based conduct, such as requests, proposals, suggestions, threats, or coercion in exchange for sexual favors for work-related benefits; or non-exchange-based acts that are not intended as exchanges but create an uncomfortable, unsafe working environment, causing physical or psychological harm and affecting the victim’s work performance and well-being. 

Regarding the definition of the workplace, Clause 3, Article 84 of Decree No. 145/2020/NĐ-CP provides that the workplace is any location where the employee actually works according to the agreement or assignment of the employer, including locations or spaces related to work such as social activities, seminars, training sessions, business trips, meals, phone calls, electronic communications, transportation arranged by the employer between the employee’s residence and workplace, accommodation provided by the employer, and other locations as specified by the employer. 

2. Solutions for dealing with sexual harassment in the workplace 

Sexual harassment in the workplace is a prohibited act under labor law. Depending on the nature and severity of the behavior, victims of sexual harassment may choose from several legal remedies, including the following: 

(i) Unilateral termination of the labor contract 

According to Point d, Clause 2, Article 35 of the 2019 Labor Code, an employee has the right to unilaterally terminate the labor contract without prior notice in cases of sexual harassment in the workplace. This provision recognizes that victims of sexual harassment often suffer physical and psychological harm, including feelings of shame, fear, and anxiety about workplace gossip or retaliation. Therefore, depending on their personal circumstances and psychological well-being, employees may choose to terminate the employment relationship with their employer. 

(ii) Dismissal 

Clause 2, Article 125 of the 2019 Labor Code stipulates that the employer has the right to apply the disciplinary measure of dismissal to employees who commit sexual harassment in the workplace, as provided in the company’s internal labor regulations. Accordingly, a victim of sexual harassment has the right to request that the employer initiate disciplinary procedures leading to the dismissal of the offender. However, in practice, applying the disciplinary measure of dismissal must strictly comply with legal requirements regarding grounds, order, and procedures. Therefore, employers should exercise caution and ensure compliance when handling such cases. 

(iii) Administrative sanctions 

Under Clause 3, Article 11 of Decree No. 12/2022/ND-CP, individuals who commit acts of sexual harassment in the workplace that do not constitute a criminal offense may be subject to an administrative fine ranging from VND 15,000,000 to VND 30,000,000. Accordingly, in cases of workplace sexual harassment, employees may report the incident to the competent authority as specified in Section 1, Chapter V of Decree No. 12/2022/ND-CP, for verification and administrative handling in accordance with the law. 

(iv) Criminal prosecution 

Unlike some other jurisdictions where sexual harassment is explicitly defined as a criminal offense, Vietnamese law has not yet criminalized sexual harassment in general, nor specifically in the workplace. However, if the conduct is serious enough to meet the elements of a criminal offense under the 2015 Criminal Code, the perpetrator may still be prosecuted. For example: If the act seriously insults another person’s honor or dignity, the offender may be prosecuted for “Humiliating others” under Article 155 of the Criminal Code; If the act involves the use of force or violence with intent to have sexual intercourse with the victim, the offender may be prosecuted for “Rape” or “Coercive sexual intercourse” under Articles 141 and 143 of the Criminal Code, respectively. 

Sexual harassment in the workplace is a sensitive and complex issue. Victims often face significant challenges in resolving such cases due to psychological barriers and the difficulty of gathering evidence to substantiate the claim. Nevertheless, the law provides specific protections and remedies to safeguard victims and uphold workplace integrity. Depending on the circumstances of each case, victims should carefully consider and choose the most appropriate legal course of action. 

(2) Doan Xuan Truong (2023), Convention on ending violence and harassment at work and its internalization in Vietnamese labor law, Journal of Law Profession, No. 01/2023.  


Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Employment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.



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