employer
Content
As an employer, employer, you you have a responsibility responsibility to maintain a workpla workplace ce that is free of sexual sexual harassment. This is your legal obligation, but it also makes good business sense. If you allow sexual harassment to flourish in your workplace, you will pay a high price in poor employee morale, low productivity, and lawsuits. The same laws that prohibit gender discrimination prohibit sexual harassment. Title VII of the Civil Rights Act is the main federal law that prohibits sexual harassment. (For more information on Title VII, see Nolo's article article Federal Antidiscrimination Laws.) In addition, each state has its own anti-sexual harassment law. This article explains what sexual harassment is and provides some prevention strategies. If you need more detailed information on your legal obligations, or your company has been hit with a harassment complaint, pick up a copy of of The Essential Guide to Handling Workplace Harassment & Discrimination , by Deborah C. England (Nolo). What Is Sexual Harassmen Harassment? t? Sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. Any conduct of a sexual nature that makes an employee uncomfortable has the potential to be sexual harassment. Given this broad definition, it is not surprising that sexual harassment comes in many forms. The following are all examples of sexual harassment: A supervisor implies to an employee that the employee emplo yee must sleep with him to keep a job. A sales clerk makes demeaning comments about female f emale customers to his coworkers.
An office manager in a law firm is made uncomfortable by lawyers who regularly tell sexually explicit jokes.
A cashier at a store pinches and fondles a coworker against her will.
A secretary's coworkers belittle her and refer to her by b y sexist or demeaning terms.
Several employees post sexually explicit jokes on an office intranet bulletin board.
An employee sends emails to coworkers that contain sexually explicit language and jokes.
The harasser can be the victim's supervisor, manager, or coworker. An employer may even be liable for harassment by a nonemployee (such as a vendor or customer), depending on the circumstances. Anyone Can Be Sexually Sexually Harassed Harassed Sexual harassment is a gender-neutral offense, at least in theory: Men can sexually harass women, and women can sexually harass men. However, statistics show that the overwhelming majority of sexual harassment claims and charges are brought by women claiming that they were sexually harassed by men. People of the same sex can also sexually harass each other, as long as the harassment is based on sex rather than sexual orientation, which is not a protected characteristic under Title VII. For example, if a man's coworkers constantly bombard him with sexually explicit photos of women, and this makes him uncomfortable, he might have a sexual harassment claim. If, however, a man's coworkers tease and belittle him because he is gay, that might not be illegal harassment under federal law as it is currently interpreted. (Of course, even if this type of behavior isn't illegal, it also isn't appropriate, and savvy employers will put a stop to it promptly so everyone can get back to work.)
The line between harassment based on sex and harassment based on sexual orientation becomes blurred when gender-based stereotypes are at play. For example, courts have held that Title VII is violated when a woman is harassed and discriminated against because she does not act sufficiently feminine; similarly, a man who is harassed for having effeminate mannerisms and gestures is protected by Title VII. These same employees might not be protected if their harassers relied more explicitly on homophobic slurs and remarks. Again, however, smart employers won't parse the legal details: This type of behavior detracts from productivity and morale and doesn't serve any valid purpose, so there's no reason to allow it to continue. Strategies for Prevention There are a number of steps that you can take to reduce the risk of sexual harassment occurring in your workplace. Although you may not be able to take all of the steps listed below, you should take as many of them as you can. Adopt a clear sexual harassment policy. In your employee handbook, you should have a policy devoted to sexual harassment. That policy should:
define sexual harassment
state in no uncertain terms that you will not tolerate sexual harassment
state that you will discipline or fire any wrongdoers
set out a clear procedure for filing sexual harassment complaints state that you will investigate fully any complaint that you receive, and
state that you will not tolerate retaliation against anyone who complains about sexual harassment. condu ct training sessions for employees. These Train employees. At least once a year, conduct sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, h arassment, review your complaint procedure, and encourage employees to use it.
Train supervisors and managers. At least once a year, conduct training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual sex ual harassment and explain how to deal with complaints. To learn more about dealing with employee complaints, see Nolo's article Guidelines for Handling Discrimination and Harassment Complaints. article Complaints. Sexual Harassment Training Requirements Some states require certain employers to conduct sexual sex ual harassment training. For example, California law requires employers that have at least 50 employees to provide supervisors with two hours of interactive sexual harassment training every two year. Connecticut and Maine also require sexual harassment training. And other states strongly encourage employers emplo yers to provide such training, even if it isn't legally required. Even if your state doesn't require or suggest training, it's still a good idea -- your managers manag ers will know what the law is and what to do when employees complain, and, if you find yourself in a lawsuit, you'll be able to show that you took steps to try to prevent harassment. Monitor your workplace. Get out among your employees periodically. Talk to them about the work environment. Ask for their input. Look around the workplace itself. Do you see any
offensive posters or notes? Talk to your supervisors and managers about what is going on. Keep the lines of communication open. Take all complaints seriously. If someone complains about sexual harassment, act immediately to investigate the complaint. If the complaint turns out to be valid, your response should be swift and effective. For more about dealing d ealing with complaints, see Nolo's article Guidelines for Handling Discrimination and Harassment Complaints. article Complaints. Mga karaniwang tanung ukol sa Sexual Harassment. Sexual Harassment (RA 7877)
Q: Ano ang sexual-harassment?
A: Ang sexual sexual harassment harassment ay ay ang sapilitang sapilitang paghingi, paghingi, paghiling paghiling o pag-uutos at iba pa, pa, ng sekswal na pabor mula sa iba, ito man ay tanggapin/pagbigyan o hindi ng biktima, na nanggagaling sa employer, manager, supervisor, ahente employer, guro, instruktor, propesor, coach, tagapagsanay, o sinumang may ng kapangyarihan,
impluwensiya, o moral na awtoridad sa iba sa loob ng trabaho o lugar ng pag-aaral o pagsasanay. Q: Saan at kailan may sexual-harassment sa ilalim ng R.A. 7877? A: Ang sexual sexual harassment harassment ay ay nagaganap nagaganap lamang lamang sa loob loob ng trabaho trabaho at lugar lugar ng pagaaral o pagsasanay. Limitado ito sa may relasyong employer-empleyado, guro-
estudyante o sa pagitan ng sinumang may moral na awtoridad at sa biktimang nasa pangangalaga niya sa loob ng nasabing mga kondisyon o kapaligiran. Q: Sino ang maaaring lumabag sa a n t i - s e x u a l h a r a s s m e n t l aw ? aw A: Sinumang Sinumang direktang direktang magsagawa magsagawa ng mga ipinagbabaw ipinagbabawal al na akto, akto, babae man o lalaki lalaki ay maaaring maparusahan sa ilalim ng batas. Gayundin, sinumang humikayat o tumulong sa iba na isagawa ang mga nasabing akto ay maaari ring managot sa batas.
Q: Paano nagaganap ang sexual harassment sa lugar ng trabaho? A: (1) Ang sekswal na pabor ay ginagawang ginagawang kondisyon kondisyon sa sa pagtanggap pagtanggap sa trabaho ng isang aplikante o pananatili ng isang empleyado sa kanyang trabaho, o di kaya’y sa pagkakaloob ng sahod o anumang benepisyo at pribilehiyo, o kaya naman ay ang pagtanggi sa sekswal na pabor ang sanhi ng diskriminasyon sa trabaho at pagkabawas o tuluyang pagkawala ng mga oportunidad sa trabaho.
(2) Ang sexual harassment ay nagdudulot ng paglabag sa mga karapatan ng empleyado sa ilalim ng batas sa paggawa (3) Ang mga akto ng sexual harassment ay nagbubunga sa isang hindi komportableng sitwasyon sa biktima Q: Paano nagaganap ang sexual harassment sa lugar ng pag-aaral o pagsasanay? A: (1) Laban Laban sa biktima biktima na nasa nasa pangangalag pangangalaga, a, kustodiya kustodiya o superbisyon superbisyon ng offender offender
(2) Laban sa biktimang ang pag-aaral o pagsasanay ay ipinagkatiwala sa offender (3) Kung ang sekswal na pabor ay kondisyon upang bigyan ang biktima ng pasadong marka, parangal o scholarship, allowance at anupamang benepisyo o konsiderasyon (4) Kung ang sekswal na pabor ay nagbubunga sa isang hindi komportableng sitwasyon sa biktima Q: Ano ang kinakailangang gawin ng employer o head of educational e ducational at training institution ayon sa R.A. 7877? A: (1) Magtakda Magtakda ng proseso upang imbestigah imbestigahan an ang mga mga kaso ng ng sexual sexual harassment. harassment.
(2) Bumuo ng CODI (Committee on Decorum and Investigation) na tatanggap ng mga reklamo patungkol sa sexual harassment.
Q: Maaari bang magsampa ng hiwalay ng kaso ang biktima maliban sa imbestigasyon ng CODI? A: Oo. Karapatan Karapatan ng biktima biktima na makahingi makahingi ng ibang legal legal na remedyo remedyo kung nais nya nya sa pamamagitan ng hiwalay na kasong kriminal sa korte. Q: Ano ang parusa sa paglabag sa batas ng sexual-harassment o R.A. 7877? A: Ang anumang anumang paglabag paglabag ay ay maaaring maaaring maparusahan maparusahan ng pagkaku pagkakulong long ng hindi bababa bababa sa isang (1) buwan at hindi lalampas ng anim (6) n a buwan o kaya’y multa na hindi bababa sa sampung libong (10,000) piso at di lalampas sa dalawampung-libong (20,000) piso, o di kaya’y parehong pagkakulong at multa, sa diskresyon ng korte. Art. 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.
Elements: 1. That the offender commits any act o off lasciviousness or lewdness 2. That the act of lasciviousness is committed against a person of either sex 3. That it is done under any of the following circumstances: a. By using force or intimidation b. When the offended party is deprived o off reason or otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the offended party is under 12 years of age or is dement demented ed
Examples Embracing, kissing and holding girl’s breast is act of lasciviousness. lasciviousness. • Taking advantage of the fact that Paula, a young married woman, was alone in the house, the accused went to the house of said woman on the pretext of asking for a glass of water, stealthily approached her and, without
giving her an opportunity to defend herself, embraced and kissed her and caught hold of her breasts. When Paula recovered from the shock, she defended herself in spite of the fact that the accused threatened to kill her with a dagger. • When a man embraces and kisses a woman three times and intentionally fondled her breast at the same time in a theater where the lights were out and the people’s attention was naturally concentrated on the picture, he must be considered as having done so with a feeling of lasciviousness, a mental process of emotion that differs in intensity in different situations and different persons. Being a purely mental process discernible only by overt acts, no inflexible rule can be laid down as an accurate measure. • Kissing and embracing a woman against her will are acts of lasciviousness when prompted by lust or lewd designs. desi gns. Compelling
a
girl
to
dance
naked
before
men
is
an
act
of
lasciviousness For her failure to pay her debt, the girl, after beating her with a stick, was compelled by the defendant to take off her clothes and dance before himself and may other persons. Held: there was a crime of acts of lasciviousness, even if the dominating motive is revenge, for her failure to pay a debt, for it cannot be believed that there was no admixture of lasciviousness in the thought and purpose of the defendant who could devise devi se such method.
Lover's embrace and kisses, not acts of lasciviousness • Lover’s embrace and kisses are not acts of lasciviousness, ther there e being no evidence that the lover was actuated by lustful design or purpose, or that his conduct was lewd or lascivious.
Motive of lascivious acts acts Motive of lascivious acts is not important because the essence of lewdness is the very act itself. It is not a defense that appellant was motivated not by lewdness but by a desire to avenge the fact that her father committed a criminal attack on appellant's wife during the Japanese occupation.
The act of lasciviousness must be committed under any of the circumstances mentioned in the definition of the crime of rape
1. By using force or intimidation; 2. When the offended party is deprived of reason or otherwise unconscious; 3. By means of fraudulent machination or grave abuse of authority; or 4. The offended p party arty is under 12 years old o orr is demented. • It is not necessary that intimidation or physical force be irresistible, it being sufficient that some violence or moral compulsion amounting to intimidation, annuls or subdues the free exercise of the will of the offended party.
In some cases, touching the breast of a woman is considered unjust vexation only. • Accused, inside a Catholic church and after the service has begun, approached a girl from behind and forcibly embraced and kissed her on the left cheek and at the same time fondled her breast. It was held tthat hat the accused was guilty only of unjust vexation. The CA said, ―considering the religious atmosphere and the presence of many persons, the conduct of the accused cannot be considered lascivious. He performed the said acts either to spite the girl or to force her to accept him as a lover. (People v. Anonuevo) • The accused, in the store of the offended girl, kissed her in public view and touched her breast. The crime was unjust vexation because there were no lewd designs. It appeared that the accused had been wooing the girl, but she jilted him. • The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances.
Acts of lasciviousness distinguished from unjust vexation
• When the accused merely kissed and embraced the complainant, either out of passion or other motive, touching the girl’s breast as a mere incident to embrace, is unjust vexation. • But when the accused not only kissed and embraced the complainant, but fondled her breast with the particular design d esign to independently derive vicarious pleasure therefrom, the element of lewd design exists. • Where the accused touched three times the private parts of the offended woman over her panties, without employing any force or intimidation, he is guilty of unjust vexation, because it might have been committed merely to satisfy a ―silly whim.‖ • But the act of the accused in forcibly placing his hand between the legs of a 12-year old girl, or without force if she be under that age, a ge, constitutes the crime of acts of lasciviousness. Distinguished from grave coercion • Where an old woman was taken from her house against her will, slapped and maltreated, her drawers taken off and her hands and feet bound by the accused to compel her to admit that she stole clothes of certain persons. The crime was grave coercion.
Abuses against chastity distinguished from offenses against chastity • Abuses Against Chastity (Art. 246, RPC) - is comm committed itted by public officer - mere immoral or indecent proposal made earnestly and persistently is sufficient • Offenses Against Chastity - committed in most cases by a private individual - it is necessary that some actual acts of lasciviousness should have been executed by the offender.
Distinguished from attempted rape
Similarities:
1. The manner of committing the crime iis s the same – by force or intimidation is employed, by means of fraudulent machinations or grave abuse of authority, or the offended party is deprived of reason or otherwise unconscious, under 12 years of age or is demented. 2. The offended p party arty in both crimes is a person of either sex. 3. The performance of acts of lasciviousness character is common to both crimes. Differences: 1. If the acts performed by the offender clearly indicate that his purpose was to lie with the offended woman, it is attempted or frustrated rape 2. In case of attempted rape, the lascivious acts are but the preparatory acts to the commission of rape; whereas, in the other, the lascivious acts are themselves the final objective sought by the offender.
It is not attempted rape, when there is no intent to have sexual intercourse. Circumstances indicating intention to lie with the offended party party
• Slipping and tearing the drawers girl, asto well as kissing her his andtrousers fondlingdown her breasts, abundantly show of anthe intention have intercourse with her by force. • The accused lifted the dress of the woman and placed himself on top of her. The woman awoke and screamed for help. But the accused persisted in his purpose, thereby indicating his intention to ravish rav ish her.
Desistance in the commission of attempted rape may constitute acts of lasciviousness
• Desistance does not imply the absolute irresponsibility irresponsibili ty of the offender with respect to acts already committed. If the acts of lasciviousness were already committed, they are within the nature of the consummated crime of acts of lasciviousness, since actual damage was already done to a lawful right. No attempted or frustrated crime of acts of lasciviousness From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose and, from that moment, all the essential elements of the offense have been accomplished.
Art. 336 vs. Art. 339 Act of lasciviousness under Art. 336 is committed against a male or a female and under circumstances o rape, i.e., without consent. Acts of lasciviousness with consent of the offended party under Art. 339 is committed against a female under circumstances of seduction. Under R.A. No. 7610, it is child abuse. Where the child is under 12, the penalty is one degree higher.
Sources: Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed. Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed.
What is the difference between sexual harassment and acts of lasciviousness? Sexual harassment is done by a person who has authority over another person. Acts Example
of
lasciviousness of
is Acts
done
by of
a
co-worker. Lasciviousness:
Morky was a trusted friend of sherrie, she even recommend him to the office where she worked. All went well for a while but one day, morky touched/grasps sherry’s breast
saying
he
had
a
sex
urge.
Still in these modern times, women are still viewed as sex objects and even a trusted friend could become a sexual predator.
Labe ls: W o m e n ' s R i g h t s
Q & A: Sexual Harassment Cases Release Date:
Monday, March 3, 2008
WHAT IS SEXUAL HARASSMENT? HARASSMENT? It is an act or a series of acts involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a workrelated, training- or education- related environment. WHAT IS THE POLICY OF THE STATE ON SEXUAL HARASSMENT? HARASSMENT? Sexual harassment, which has been declared unlawful in the workplace, training and education environments, will not be tolerated as it violates the dignity and human rights of a person. WHAT IS THE PRESENT LAW ON SEXUAL HARASSMENT? HARASSMENT? R.A.
7877,
an
―Act
Declaring
Sexual
Harassment
Unlawful
in
the
Employment, Education or Training Environment, and for other purposes‖ was approved on February 14, 1995 and became effective on March 5, 1995, fifteen (15) days after its publication in the Malaya and Times Journal on February 18, 1995. It is known as ―The Anti-Sexual Anti -Sexual Harassment Act of 1995.‖
WHAT IS CIVIL SERVICE COMMISSION (CSC) RESOLUTION NO. 010940? 0940? It is known as the Administrative Disciplinary Rules on Sexual Harassment Cases. WHAT IS THE EFFECT OF CSC RESOLUTION NO. 01-0940 TO PRIOR ISSUANCES OF THE CSC AND THE DEPARTMENT OF LABOR AND EMPLOYMENT? EMPLOYMENT? It supersedes or repeals prior CSC issuances such as MC No. 19, s. 1994 and CSC Res. 95-6161. DOLE Administrative Order No. 250, s. 1995 has to be amended accordingly or replaced altogether, in consonance with the changes made in the new CSC Rules on Sexual Harassment. WHERE CAN SEXUAL HARASSMENT BE COMMITTED UNDER THE PROVISIONS OF CSC RESOLUTION
NO. 01-0940? 01-0940?
Sexual harassment may take place: 1. in the premises of the workplace or office or of the school or training institution; 2. in any place where the parties were found, as a result of work or education or training responsibilities or relations; 3. at work or education- or training-related social functions; 4. while on official business outside the office or school or training institution or during work or school or training-related travel; 5. at official conferences, fora, symposia or training sessions; or 6. by telephone, cellular phone, fax machine or electronic mail. WHEN IS SEXUAL HARASSMENT COMMITTED IN THE EMPLOYMENT OR WORK-RELATED ENVIRONMENT? ENVIRONMENT? Work-related sexual harassment is committed when: 1. the submission to or rejection of the act or series of acts is used as basis for any employment decision (including but not limited to, matters related to
hiring, promotion, raises in salary, job security, benefits and any other personnel action) affecting the applicant/employee; or 2. the act or series of acts have the purpose or effect of interfering with the complainant’s work performance, or creating an intimidating, hostile or offensive work environment; or 3. the act or series of acts might reasonably be expected to cause discrimination,
insecurity,
discomfort,
offense
or
humiliation
to
a
complainant who may be a co-employee, applicant, customer, or ward of the person complained of. WHEN IS SEXUAL HARASSMENT COMMITTED IN AN EDUCATION OR TRAINING ENVIRONMENT? ENVIRONMENT? Education or training related sexual harassment is committed when: 1. the submission to or rejection of the act or series of acts is used as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration; or 2. the act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or 3. the act or series of acts might reasonably be expected to cause discrimination,
insecurity,
discomfort,
offense
or
humiliation
to
a
complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of. WHEN IS A GOVERNMENT OFFICIAL/EMPLOYEE LIABLE FOR SEXUAL HARASSMENT? HARASSMENT? A government official or employee, regardless of sex, is liable for sexual harassment when he/she:
1. directly participates in the execution of any act of sexual harassment as defined by the Administrative Disciplinary Rules on Sexual Harassment Cases; 2. induces or directs another or others to commit sexual harassment as defined by these Rules; 3. cooperates in the commission of sexual harassment by another through an act without which the sexual harassment would not have been accomplished; or 4. cooperates in the commission of sexual harassment by another through previous or simultaneous acts. WHAT ARE THE FORMS OF SEXUAL HARASSMENT? HARASSMENT? 1. Physical a. Malicious touching b. Overt sexual advances c. Gestures with lewd insinuation 2. Verbal, such as but not limited to, requests or demands for sexual favors, and lurid remarks 3. Use of objects, pictures or graphics, letters or written notes with sexual underpinnings 4. Other forms analogous to the foregoing. WHAT ARE THE FUNCTIONS OF THE COMMITTEE ON DECORUM AND INVESTIGATION (CODI) IN SEXUAL HARASSMENT CASES? CASES? The CODI shall: 1. Receive complaints of sexual harassment; 2. Investigate sexual harassment complaints in accordance with the prescribed procedure;
3. Submit a report of its findings with the corresponding recommendation to the disciplining authority for decision; and 4. Lead in the conduct of discussions about sexual harassment within the agency or institution to increase understanding and prevent incidents of sexual harassment. WHAT IS THE COMPOSITION OF THE CODI? CODI? At least one (1) representative each from: 1. In a work-related environment: i. the management ii. the accredited union (if any) iii. the first level employees iv. the second level employees 2. In an educational/training institution: i. the administrator ii. the trainers, teachers, instructors, professors or coaches iii. the students or trainees The term of office of the members of the CODI shall not be more than two (2) years. AT THE PRE-FILING STAGE, WHAT ASSISTANCE CAN THE AGENCY PROVIDE TO AN ALLEGED VICTIM OF SEXUAL HARASSMENT? HARASSMENT? The agency may adopt mechanism to provide assistance to an alleged victim of sexual harassment which may include: 1. counseling; 2. referral to an agency offering professional help; and 3. advice or options available before the filing of the complaint. WHAT
ARE
THE
STANDARD
PROCEDURAL
HANDLING A SEXUAL HARASSMENT CASE? CASE?
REQUIREMENTS
IN
1. When can a complaint for sexual harassment be filed? Anytime 2. With whom can a complaint file a complaint for sexual harassment be filed? With the disciplining authority of the office/ agency; or with the Committee on
Decorum
and
Investigation.
Upon
receipt
of
the
complaint,
the
disciplining authority of the office/agency shall transmit the same to the CODI, if there is any. In the absence of a CODI, the head of office/agency shall cause the creation of a CODI in accordance with the law and rules and transmit the complaint to said Committee. 3. What are the requirements for a complaint? It must be in writing, signed and sworn to by the complainant, and contains the following: Full name and address of the complainant; Full name, address, and position of the respondent; A brief statement of the relevant facts; fac ts; Residence, in support of the complaint, if any; and A certification of non-forum shopping. In the absence of any one of the aforementioned requirements, the complaint shall be dismissed without prejudice to its refilling. 4. Are complaints sent thru telegram, radiogram, electronic mail or similar means considered as filed? Yes, if the requirements provided in Section 12 (b) of Resolution No. 010940 are complied with. In the absence of the said requirements, the complaint is considered non-filed. Complainant has to be notified to comply within ten (10) days from receipt of the notice for compliance.
5. Shall the withdrawal of the complaint at any stage of the proceedings preclude the CODI from proceeding with the investigation? When there is obvious truth or merit to the allegations in the complaint or where there is documentary or direct evidence that can prove the guilt of the person complained of, the CODI can proceed with the investigation. WHAT WILL BE THE ACTION OF THE CODI ON THE COMPLAINT? COMPLAINT? 1. Counter-Affidavit/Comment of Person Complained of Upon receipt of a complaint that is sufficient in form and substance, the CODI shall require the person complained of to submit a CounterAffidavit/Comment under oath within three (3) days from receipt of the notice, furnishing a copy to the complainant; otherwise, the CounterAffidavit/ Comment shall be considered as not filed. 2. Preliminary Investigation The CODI shall conduct a preliminary investigation which shall involve the ex parte examination of documents submitted by the complainant and the person complained of, as well as documents readily available from other government offices. During the preliminary investigation, the parties may submit affidavits and counter-affidavits. 3. Formal Charge Upon receipt of the counter-affidavit/comment under oath, the Committee on Decorum and Investigation may now recommend whether a prima facie case exists to warrant the issuance of a formal charge. Strict confidentiality of the proceedings during preliminary investigation by the CODI shall be exercised. WHAT
SHALL
BE
INVESTIGATION? INVESTIGATION?
THE
DURATION
OF
THE
PRELIMINARY
The preliminary investigation shall commence not later than five (5) days from receipt of the complaint by the CODI. It shall be terminated within fifteen (15) working days thereafter. WHEN WILL THE CODI SUBMIT ITS INVESTIGATION REPORT ON THE PRELIMINARY INVESTIGATION? INVESTIGATION? The CODI shall submit the Investigation Report and the complete records of the case to the disciplining authority within five (5) working days from the termination of the preliminary investigation. WHAT WILL BE THE ACTION OF THE DISCIPLINING AUTHORITY AFTER PRELIMINARY INVESTIGATION? INVESTIGATION? Within three (3) working days from receipt of the investigation report, the disciplining authority shall issue a formal charge if a prima facie case is established during the investigation. If a prima facie case is not established during the investigation, the complaint shall be dismissed within three (3) working days from receipt of the investigation report. WHAT ARE THE CONTENTS OF THE FORMAL CHARGE? CHARGE? 1. A specification of the charge/s; 2. A brief statement of material or relevant facts; 3. Certified true copies of the documentary evidence, if any; 4. Sworn statement covering the testimony of witness/es; 5. A directive to answer the charge/s in writing under oath in not less than seventy-two (72) hours from receipt thereof; 6. An advice for the respondent to indicate in his/her answer whether or not he/she elects a formal investigation of the charges; and 7. A notice that he/she is entitled to be assisted by a counsel of his/her choice. CAN THE RESPONDENT SUBMIT ADDITIONAL EVIDENCE/S AFTER THE PRELIMINARY INVESTIGATION? INVESTIGATION?
Yes, even if he has already submitted his/her comment/s and counter affidavits during the preliminary investigation. WHAT
WILL
BE
THE
CONTENT
OF
THE
ANSWER
OF
THE
RESPONDENT? RESPONDENT? The answer, which must be in writing and under oath, shall be specific and shall contain material facts and applicable laws, if any, including documentary
evidence/s,
sworn
statements
covering
testimonies
of
witnesses, if any, in support of respondent's case. It shall also include a statement indicating whether he/she elects a formal investigation. The answer must be filed within seventy-two sev enty-two (72) hours from receipt thereof. WHAT WILL BE THE EFFECT IF RESPONDENT FAILS OR REFUSES TO ANSWER WITHIN THE 72 HOURS REQUIREMENT? REQUIREMENT? It shall be considered a waiver of respondent’s right to answer and a formal investigation may commence. WHEN CAN PREVENTIVE SUSPENSION BE APPLIED? APPLIED? Preventive suspension can be applied upon petition of the complainant or motu propio upon the recommendation of the CODI after the service of the Formal Charge to the respondent. The proper disciplining authority may order the preventive suspension during the formal investigation, if there are reasons to believe that the person complained of is probably guilty of the charges which would warrant his/her removal from the service. WHAT IS THE PURPOSE OF THE PREVENTIVE SUSPENSION? SUSPENSION? An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his/her malfeasance or misfeasance and to preclude the possibility of his/her exerting undue influence or pressure on the witnesses against his/her tampering of documentary evidence on file with this Office. HOW LONG IS THE PERIOD OF PREVENTIVE SUSPENSION? SUSPENSION?
Preventive suspension for an administrative case shall not be more than ninety (90) days unless otherwise provided by a special law. WHAT REMEDIES FROM THE PREVENTIVE SUSPENSION CAN BE AVAILED OF BY THE RESPONDENT? RESPONDENT? Within fifteen (15) days from receipt of order, respondent may: 1. file a motion for reconsideration with the disciplining authority; or 2. elevate the same to the Civil Service Commission by way of an appeal. WHEN CAN A FORMAL INVESTIGATION BE CONDUCTED? BY WHOM? WHOM? If the CODI deems that a formal investigation is necessary to decide the case judiciously, it shall conduct an investigation not earlier than five (5) days nor later than ten (10) days from receipt of the respondent’s answer. It shall be finished within thirty (30) days from the issuance of the formal charge or the receipt of the answer unless the disciplining authority extends the period. WHAT IS THE PRE-HEARING CONFERENCE? CONFERENCE? The pre-hearing conference may be conducted by the CODI at the commencement of the formal investigation to agree on matter/s that would expedite the hearing. The hearing proper and the order of presentation of evidence/s is governed by Sections 26 to 35 of the Administrative Disciplinary Rules on Sexual Harassment Cases of the CSC. WHEN IS THE FORMAL INVESTIGATION REPORT SUBMITTED? TO WHOM? WHOM? Within fifteen (15) days after the conclusion of the formal investigation, a report containing a narration of the material facts established during the investigation, the findings and the evidence supporting said findings, as well as the recommendations, shall be submitted by the CODI to the disciplining authority together with the complete records of the case.
Within thirty (30) days from receipt of the investigation report, the disciplining authority shall render his/her decision on the case. WHEN IS A DECISION ON A SEXUAL HARASSMENT CASE BY THE DISCIPLINING AUTHORITY FINAL AND EXECUTORY? EXECUTORY? The decision of the disciplining authority is final and executory when the penalty of suspension is not more than thirty (30) days or a fine of not more than the equivalent of thirty (30) days salary is imposed. WHEN IS A PENALTY OF SUSPENSION APPEALABLE TO THE CIVIL SERVICE COMMISSION? COMMISSION? A penalty of suspension exceeding thirty (30) days or a fine exceeding the equivalent of thirty (30) days salary of the respondent shall be appealable to the ommission after the lapse of the reglamentary period for filing a motion for reconsideration or an appeal and no such pleading has been filed. WHAT ARE THE REMEDIES AFTER A DECISION? DECISION? 1. Motion for reconsideration by the adversed party 2. Appeal to the Civil Service Commission if penalty imposed exceeds thirty (30) days suspension or fine exceeding the equivalent of thirty (30) days salary. The appeal may be initially appealed to the department head (for decisions rendered by the bureau or office head that are appealable to the CSC) 3. Petition for review with the CSC by a complainant for a decision of a disciplining authority dismissing a complaint for lack of prima facie case 4. Petition for review with the Court of Appeals on a decision made by the CSC 5. Petition for certiorari in the proper court by the aggrieved party WHEN CAN A MOTION FOR RECONSIDERATION BE FILED BY THE ADVERSED PARTY? PARTY?
The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the decision within fifteen (15) days from receipt thereof. Such is deemed filed on the date stamped on the official copy by the proper receiving authority, and if sent by mail, on the date shown by the postmark on the envelope, which shall be attached to the records of the case. The filing of the motion for reconsideration within the reglamentary period shall stay the execution of the decision sought to be reconsidered. WHAT CAN BE THE BASIS FOR A MOTION FOR RECONSIDERATION? RECONSIDERATION? 1. New evidence has been discovered which materially affects the decision rendered; or 2. The decision is not supported by the evidence on record; or 3. Errors of law or irregularities have been committed prejudicial to the interest of the movant. CAN THERE BE MORE THAN ONE MOTION FOR RECONSIDERATION? RECONSIDERATION? No, only one motion for reconsideration shall be entertained. WHEN
CAN
AN
APPEAL
FOR
DECISIONS
OF
HEADS
OF
DEPARTMENTS, PROVINCES, CITIES, MUNICIPALITIES AND OTHER INSTRUMENTALITIES BE APPEALED TO THE CSC? CSC? For a decision where the penalty imposed is more than thirty (30) days suspension or a fine exceeding the equivalent of thirty (30) days salary, it may be appealed to the CSC within a period of fifteen (15) days from receipt thereof. A notice of appeal, including the appeal memorandum, shall be filed with the appellate authority with a copy furnished to the disciplining office. The latter shall submit the records of the case, which shall be automatically and chronologically arranged, paged and securely bound to prevent loss with its comment within fifteen (15) days, to the appellate authority.
WHEN IS THE APPEAL DEEMED FILED? HOW MUCH IS THE APPEAL FEE? FEE? An appeal sent by mail shall be deemed filed on the date shown by the postmark on the envelope, which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office. The appellant shall pay an appeal fee of three hundred pesos (P300.00) and a copy of the receipt shall be attached to the appeal. WHEN IS AN APPEAL PERFECTED? PERFECTED? The appeal is perfected when the appellant shall have submitted within fifteen (15) days from receipt of the decision dec ision the following: 1. Notice of appeal which shall specifically state the date of the decision appealed from and the date of receipt thereof; 2. Three copies of appeal memorandum containing the grounds relied upon for the appeal, together with the certified true copy of the decision, resolution or order appealed from, and certified copies of the document or evidence; 3. Proof of service of a copy of the appeal memorandum to the disciplining office; 4. Proof of payment of the appeal fee; and 5. A statement or certification of non-forum non -forum shopping WHAT IS THE EFFECT OF FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS WITHIN THE REGLAMENTARY PERIOD? PERIOD? It shall be construed as failure to perfect an appeal and shall cause its dismissal. WILL
AN
APPEAL
FILED
STOP
THE
DECISION
EXECUTORY? EXECUTORY? The appeal shall not stop the decision from being executory.
FROM
BEING
In case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the period of the appeal, in the event he wins the appeal. WHAT IS THE CLASSIFICATION OF ACTS OF SEXUAL HARASSMENT? HARASSMENT? Sexual Harassment is classified as: 1. Grave Offenses a. unwanted touching of private parts of the body (genitalia, buttocks, and breast); b. sexual assault; c. malicious touching; d. requesting for sexual favor in exchange for employment, promotion, local or foreign travels, favorable working conditions or assignments, a passing grade, the granting of honors or scholarship, or the grant of benefits or payment of a stipend or allowance; and e. other analogous cases. 2. Less Grave Offenses a. unwanted touching or brushing against a victim’s body; body; b. pinching not falling under grave offenses; c. derogatory or degrading remarks or innuendoes directed toward the members of one sex or one’s sexual orientation or used to describe a person; d. verbal abuse or threats with sexual overtones; and e. other analogous cases. 3. Light Offenses a. surreptitiously looking or stealing a look at a person’s private part or worn undergarments;
b. telling sexist/smutty jokes or sending these through text, electronic mail or other similar means, causing embarrassment or offense and carried out after the offender has been advised that they are offensive or embarrassing or, even without such advise, when they are by their nature clearly embarrassing, offensive or vulgar; c. malicious leering or ogling; d. the display of sexually offensive pictures, materials or graffiti; e. unwelcome inquiries or comments about a person’s sex life; life; f. unwelcome sexual flirtation, advances, propositions; g. making offensive hand or body gestures at an employee; h. persistent unwanted attention with sexual overtones; i. unwelcome phone calls with sexual overtones causing discomfort, embarrassment, offense or insult to the receiver; and j. other analogous cases. The head of the agency who fails to act on the complaint within fifteen (15) days from receipt of any complaint for sexual harassment properly filed against any employee in that office shall be charged with neglect of duty. Any person found guilty of sexual harassment shall, after the investigation, be meted the penalty corresponding to the gravity grav ity of the offense. WHAT
ARE
THE
PENALTIES
FOR
OFFENSES
OF
SEXUAL
HARASSMENT? HARASSMENT? 1. Grave offenses - Dismissal 2. Less grave offenses 1 st offense - Fine or suspension for thirty (30) days but not exceeding six (6) months 2 nd offense - Dismissal 3. Light offenses
1 st offense - Reprimand 2 nd offense - Fine or suspension not exceeding thirty (30) days 3 rd offense - Dismissal WHAT PENALTY SHALL BE APPLIED IF THE RESPONDENT IS FOUND GUILTY OF TWO (2) OR MORE CHARGES OR COUNTS? COUNTS? The penalty to be imposed shall be that corresponding to the most serious charges or
count
and the
rest
shall be
considered as aggravating
circumstances. WHAT ARE THE DUTIES OF THE AGENCIES OF THE GOVERNMENT ACCORDING
TO
THE
CIVIL
SERVICE
COMMISSION
(CSC)
ADMINISTRATIVE DISCIPLINARY RULES ON SEXUAL HARASSMENT CASES? CASES? All national and local government agencies, state colleges and universities, including government-owned or controlled corporations with original charter, shall promulgate or modify their own rules and regulations in conformity with these Rules, in consultation with their employees, within six (6) months from the effectivity of this Resolution. All agencies of the government shall submit an authenticated copy of their rules and regulations on sexual harassment to the Commission for approval within one (1) month from the date of their promulgation. It shall likewise submit to the Commission a list of the members of their Committee on Decorum and Investigation immediately after its composition. All agencies of the government shall develop an education and training program for their officials and employees and the members of their Committee on Decorum and Investigation to increase understanding about sexual harassment, prevent its occurrence, and ensure proper investigation, prosecution and resolution of sexual harassment cases. The head of office who, after six (6) months from the affectivity of this resolution, fails to cause the promulgation or modification of the agency’s rules and regulations on sexual harassment in conformity with these rules, shall be charged with neglect of duty.
WHAT SHALL APPLY TO A CASE OF SEXUAL HARASSMENT WHEN THE AGENCY
IS
STILL
IN
THE
PROCESS
OF
PROMULGATING
OR
MODIFYING ITS OWN RULES AND REGULATIONS? REGULATIONS? During the period when the agency is still in the process of promulgating or modifying its own rules and regulations on sexual harassment, a complaint alleging acts constituting sexual harassment shall be administratively prosecuted, resolved and adjudicated based on these Rules. Source: Civil Service Commission (CSC), Administrative Disciplinary Rules on Sexual Harassment Cases. Cases. Resolution No. 01-0940, May 21, 2001 2001
