Published 29 April 2022, The Daily Tribune

Every employee has the right to work in a safe environment free of discrimination, including sexual harassment. Thus, employers need to impose preventive measures and take immediate and reasonable actions to protect their employees from sexually abusive conduct. Otherwise, they run the risk of being held responsible for the sexually harassing conduct done by their employee to a colleague.

Under the Anti-Sexual Harassment Act, the employer is solidarily liable for damages to the perpetrator in case an act of sexual harassment was reported and it did not take immediate action on the matter. At the same time, the Safe Spaces Act mandates employers to create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment, among others. Significantly, failure to comply with this duty or to take action on reported acts of harassment will make the employer liable for a fine.

These provisions were illustrated in the fairly recent case of LBC Express v. Palco, G.R. 217101, 12 February 2020.

In the case of LBC, a customer associate noticed something amiss in the way her team leader treated her. The former initially shrugged it off and simply focused on her job but the latter’s actions grew bolder, such as when he started to find ways to put his hand on her lap or shoulder and kiss her on the cheek in a joking manner. The latter also inconceivably pulled the strap of her undergarment and joked about making a baby with her.

The final straw happened when her team leader sneaked in on her while she was counting money, held her on her hips, and kissed her lips. Four days after the incident, she reported the sexual harassment to the head office and was advised to transfer to another team while they investigated the matter. Sensing that the management did not immediately act on her complaint, she resigned 13 days after the incident asserting that she was forced to quit because she no longer felt safe at work. She later filed a complaint about Illegal Dismissal against her employer.

Her employer argued that it cannot be held liable for constructive dismissal because it was her team leader who committed the acts subject of her complaint and the employer did not know of, participate, or consent to such acts and only learned of the same after she reported it. The Supreme Court was unconvinced and held the employer liable for constructive dismissal.

In so ruling, the Court stressed that “constructive dismissal does not always involve forthright dismissal or diminution in benefits. There may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment [and] one of the ways by which a hostile or offensive work environment is created is through sexual harassment of an employee.”

The Court stressed that even if the employer had no participation in the sexual harassment, it had been informed of the incident. Despite this, the employer failed to take immediate action on the complaint and this reinforced the hostile work environment created by the team leader. In the case of LBC, it took the employer two months to resolve the matter. Thus, due to the employer’s insensitivity, it was made liable for the employee’s separation pay, damages, and attorney’s fees.

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