Employer's obligations regarding gender-based violence in the workplace

In this judgment, a tutela action filed by a female worker against a recognized journalistic house was reviewed for the violation of her fundamental constitutional rights to equality, non-discrimination and to live a life free of violence, whose protection was requested by the plaintiff. All of the above because the worker had spoken and notified her employer about the sexual abuse by a co-worker outside the company and the criminal proceedings in progress against him.

For the Court, although the plaintiff did not report a case of harassment at work or sexual harassment, the conduct that she brought to the attention of the ordinary justice system can be qualified, in any case, as violence or discrimination based on gender, in accordance with Law 1257 of 2008.

Likewise, this Corporation concluded that her employer did not comply with the legal obligations it would have to comply with in such a situation, which are to prevent, investigate, prosecute and punish violence and/or discrimination against women based on gender, within the framework of three fundamental aspects: (i) due diligence and co-responsibility, (ii) non-tolerance and (iii) non-repetition.

Due diligence and co-responsibility consists of attending to cases of gender-based violence and discrimination promptly, opening disciplinary investigations against the accused, offering protection measures to the complainant, preventing the victims from being forced to share spaces with their alleged victimizer and creating protocols for attention.

The Corporation also established that individuals must have clear routes and measures, with protocols of care sensitive to the specific situation of women, in order to guarantee them a procedure that protects their rights, as well as to provide them with the confidence and security that they will have sufficient means of support to go ahead with their complaint and that they will not be stigmatized, humiliated or revictimized under the following rules for the protocol of care in an alleged case of gender-based violence:

(i) Immediate care: these are adjustments in working hours in order to avoid permanent contact between the complainant and the alleged aggressor, such as changing work schedules and physical and virtual spaces, among others. The Court clarifies that the one who must adjust to these modifications "is not in any case the victim, but the alleged perpetrator";

(ii) Psychosocial care: It should be provided immediately when the case is known and maintained for as long as the victim requires it. It is recommended that this process be entrusted to gender expert entities made up of professionals with expertise in the subject;

(iii) Legal advice: It should be offered free of charge to the victim and the alleged perpetrator by an entity with experience in the subject. The protocols must include a route that indicates to the victim what her legal possibilities are to file a complaint and information on how to access the ordinary justice system.

This ruling then sets a precedent for the Companies in terms of management, prevention, action plan and sanctions for gender violence that both judicial authorities and legal operators, as well as those who develop their activity in relationships between individuals, mainly in the world of work, must apply a gender-focused analysis when addressing and managing complaints of violence and / or discrimination against women.

In addition, it includes some duties to be observed when protecting and preventing violence and harassment, including adopting measures such as:

(i) Incorporate measures to effectively protect such persons;

(ii) Adopt and implement, in consultation with workers and their representatives, a workplace policy regarding violence and harassment;

(iii) Take into account violence and harassment, as well as associated psychosocial risks, in the management of occupational safety and health;

(iv) Identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives, and adopt measures to prevent and control such hazards and risks;

Provide workers and other persons concerned, in an accessible manner, as appropriate, with information and training on the dangers and risks of violence and harassment identified, and on the corresponding prevention and protection measures, including on the rights and responsibilities of workers and other persons concerned in relation to the implementation of the policy on violence and harassment.

It also indicated that the presumption of innocence of the alleged aggressor did not prevent the alleged victim from being offered an appropriate means of support and respect for her rights to continue with her work while the complaint filed with the judicial authorities was being resolved.

Based on the foregoing, the Court found that, in the case under review, the complaint filed by the plaintiff involved an alleged act of sexual assault, conduct that should have been analyzed by the defendant company not from a neutral perspective, but from a differential and gender-focused approach, to offer the victim a clear and safe route of care and support that would provide protection to her rights without revictimizing her.

Finally, for the particular case, the Court declared the resignation of the worker ineffective and ordered the company to reinstate the victim to a position of equal or higher hierarchy than the one she occupied in the company and the payment of the salaries and benefits lost from the time of her dismissal until her effective reinstatement. And if the plaintiff chooses not to be reinstated to her job, the company must comply with the payment of the above mentioned emoluments by way of reinstatement of the violated rights until the date of notification of this judgment.

Now, with regard to employers, it is clear that for the constitutional jurisprudence, workplaces cannot become scenarios in which there is neutrality or tolerance to behaviors related to gender violence and therefore all the measures indicated herein must be applied under penalty of violating both labor rights and constitutional rights.