Laws and Governrment

Can a female employee harass a male employee? Or is it always the other way around?

This is an analysis of sexual harassment complaint filed by Luigi Avance, against Edna Koronel, VP of PLA Company. Definition of sexual harassment and discussion of the facts are provided below.

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is an imposition of misplaced “superiority” which is enough to dampen an employee’s spirit and her capacity for advancement. It affects her sense of judgment; it changes her life.
Sexual harassment is an act of sexual favor made as a condition in the hiring or in the employment, re-employment or continued employment to an individual and in return granting the individual favorable compensation, terms, conditions, promotion and privileges. It is a series of acts involving undesirable sexual advances by anyone which directly or indirectly interfere with the individual’s performance, impairing the rights and creating a hostile and offensive working atmosphere for them.

In an employment, work, education or training raleted, sexual harassment is committed when:
(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment    of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee

Persons who are liable for sexual harassment
Sexual harassment is committed by “an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another”. They may demand, requests or require sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted or not. The person who is liable for sexual harassment is any official having authority, influence or moral ascendancy over another regardless of sex.

FACTS

In a letter-complaint filed before the President of the PLA Co., Luigi Avance alleged several instances of sexual harassment against Edna Koronel, VP for Corporate Relations of the said company. In this case, Avance is the executive assistant of Koronel who directly reports to her, handling office requirements, confidential works and other personal errands. Both of them call each other by their first names as required by Koronel. PLA Co. is a holdings company of different business portfolio wherein in this case, it has a three-year multi-phase development program in Pampanga. Both go to Pampanga at least once a month and most often, Koronel requested the complainant to drive for her.
In November 2008 on the way home from Pampanga, Koronel asked the complainant several questions pertaining to his personal life involving his family, his MBA class and his personal relationship with his girlfriend. Thereafter, Koronel said, “Igi, I like you a lot. You’re different from the others.” She added, “Huwag kang tumigil sa MBA classes mo at importante sa trabaho natin iyan. Ako ang bahala sa iyo hanggang ako pa ang boss mo.” Since then, she became kinder to him. Both of them often meet in Koronel’s office and complainant felt awkward whenever Koronel was wearing revealing inner clothes and he was embarrassed to bring the matter to her attention.

In December 2008, Koronel gave Php5000.00 to the complainant. He refused to accept the money but she sternly insisted saying that it’s a Christmas gift. He accepted the money because she might be mad to him if he’ll do otherwise. She advised him to keep the matter to himself for she didn’t want to be the subject of gossip.
After the approval of the permit in 2009, Koronel’s team celebrated in a hotel at Clark Pampanga. Everyone was in festive mood congratulating and kissing each other. Suddenly, Koronel hugged Avance tightly and kissed him. He felt so awkward and uncomfortable. Later, she invited him to dance. She moved her body close to his and hugged him. He attempted to decline in the invitation but Koronel said she’ll flunk him in performance evaluation if he’ll join her.

In February 2009, she remarked that she forgot to greet him on Valentine’s Day. She was wearing slinky blouse then and attempted to kiss him but he avoided her. She pretended to lose her balance and threw herself on him. She then embraced and kissed him. He felt embarrassed to what happened.
Early 2009, they had a meeting together with JD, their junior engineer. After JD left, Koronel approached him and hold his shoulder. While she was squeezing his right hand, she asked how they were going to finish the design. She was walking to and fro behind him while dictating instructions for the model design. Suddenly she stopped, then placed her right hands in his shoulder, squeezed it then her fingers ran through on his neck then tickled his ear. He removed her hands and silently continued his work.

Lastly, Avance alleged that Atty. Montelibano, former legal counsel resigned from the company because of the same sexual advances of Koronel. Avance also alluded to stories of Nathaniel Bautista, Accountant of the company about sexual advances supposedly made by Koronel towards him.
In a letter, Koronel gave her defense.

Koronel affirmed that Avance is her executive assistant. She called Avance in his first name because it was her requirement to all her subordinates to encourage close relationship with them. She was by nature affectionate and treated them as friends. She alleged that as part of her leadership style, she wanted to learn about their personal lives including their educational endeavour. She was very supportive of them and sometimes she provided assistance to some of her subordinates just like the assistance she gave to Christine and Carmina for their computer courses.

Since 2007, she used to travel in Pampanga together with either Atty. Patrick Atty. Patrick Montelibano, former Corporate Legal Counsel of PLA Co. and/or Atty. Derrick Dizon, the former’s assistant lawyer. She used to ask both to drive for her going to Pampanga.
Concerning her clothes, she alleged that she just wanted to be in comfortable clothes after meetings, during overtime and when the air conditioned is off. With regards to dancing and kissing allegation at Clark Pampanga, she contended that she hugged and kissed almost everyone from the team and she danced with others too.

Moreover, flunking Avance in his performance evaluation was only said in jest since it was party time. On the post Valentine’s meeting in her room, she fell on him because she lost her balance. Lastly, she asserted that all other allegations were product of Avance’s imagination for she cannot do sexual advances to him because she is a woman and that will ruin her reputation.

ISSUE:

Can Koronel be charged of sexual harassment?

DISCUSSION:

On the first issue of calling Avance in his first name, there was no showing that Koronel acted with malice in requiring him to call her in her first name since she required everyone to do the same. RA 7877 does not mention that that the use of first name in the workplace towards a superior can be taken against an employee. As it was the requirement of Koronel to all her subordinates, it can be affirmed that she just wanted to establish relationship with her team to strengthen her leadership.
The act of kindness to Koronel such as giving money for Avance’s MBA and promising support and future privileges cannot be considered as an act of sexual harassment as she did the same to some of her subordinates as well. It can be considered as an act of sexual harassment as provided in Section 3 of RA 7877 when “sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges….” In this case, Koronel was thinking of the advancement of her staff for it will be “necessary to their work” .

On the alleged kissing of Koronel towards Avance, it was done in a festive mood. The team celebrated after getting the approval of their project’s permit. The fact that Koronel also kissed her other subordinates in “beso-beso” manner, without malice as a form of greeting each other on the party showed that those busses on the cheeks were simply friendly, innocent and without malice. They were in a party thus, “beso-beso” cannot be considered as an act of sexual harassment since Koronel did it almost to everyone. This act is similar to the case of Aquino v Acosta , it was mentioned that “a mere casual buss on the cheek” made on festive moods didn’t constitute immoral sexual conduct or favor and didn’t fall within the purview of sexual harassment under R.A. No. 7877. Thus, Justice Salonga concluded in which pertinent portions provide:
The fact that respondent judge kisses other people on the cheeks in the ‘beso-beso’ fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice ‘beso-beso’ or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year’s Day and even Valentine’s Day, and it does not matter whether it is Judge Acosta’s birthday or their birthdays. xxx No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of ‘beso-beso’ were given malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual undertone in all those incidents.

Furthermore, regarding Atty. Montebilano, and Bautista’s stories of sexual harassment of sexual harassment, there was no enough information to believe such baseless imputation since there was no enough evidence presented. It can be inferred that this was just concocted to add flavor to the complaint hurled against Koronel. Substantial evidence is needed in order for this case to flourish. Mere rumors would not suffice. In the case of Dawa v De Asa there was sufficient evidence to warrant a decision that De Asa was guilty of sexual harassment. That in the time of investigation, they had recess several times to give complainants time to compose themselves as they were perpetually in tears as they were required to relate the repeated violations of their persons and honors.
Weaknesses

On the alleged inappropriate conversations and actions of Koronel against Avance such as “holding his shoulder, caressing his neck and tickling his ears”, all these can be unmistakably considered as sexual overtones of Koronel. These acts were outrageous which resulted in an intimidating, hostile and offensive working environment for Avance. These specific actions are parallel to the case of Domingo v Rayala . RA 7877 requires that there must be a call for a “demand, request or requirement of a sexual favour” however, it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It can be recognized, with equal conviction, from the wrongdoer’s actions.

In the following instances such as the when Koronel wore revealing clothes during a closed-door meeting with Avance; on the post Valentine’s meeting in her room wherein she fell on him because she pretended to lose her balance; meeting held late at night and only the two of them left working on the model design and coupled with Koronel’s inappropriate conversations, a hostile environment was created. All these situations made Avance felt awkward and uncomfortable. Hostile environment is defined as:

     Hostile environment is created when a person is subject to unwelcome sexual advances, requests for sexual favors, or  other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person’s employment and creates an abusive working environment.

It was clearly shown that the aforementioned situations rendered abusive environment for Avance. All those actions were unwelcome wherein there were instances that Avance, immediately went out of the Koronel’s office.
On the supposedly flunking of Koronel in the performance evaluation, it can be apparently observed that Koronel made undue advances towards him. It can be inferred that Avance feared losing his job should he not cooperate with his boss who has the power to remove him from his job. Although it was only said jokingly, it does not negate the fact that Koronel is still Avance’s boss who has the power to terminate him. In the case of Paeste v Mamenta , “sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire – it is about power being exercised by a superior over his women subordinates . That power emanates from the fact that he can remove them if they refuse his amorous advances”. In the case at bench, Koronel holds the power to remove Avance from his job if he refused her ardent advances.
Lastly, the allegations of Koronel that she cannot do sexual advances towards Avance because she is a woman cannot be appreciated. The law does not discriminate sex of the offender of sexual harassment. RA 7877 provides that sexual harassment can be committed by “an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another”. The person who is liable for sexual harassment is any official having authority, influence or moral ascendancy over another regardless of sex. Thus, Koronel, being a woman to negate sexual advances towards Avance has no merit.

CONCLUSION/RECOMMENDATION

Should the complaint be elevated to the court, the preponderance weight of evidence on the issues involved must be considered such as the evidence presented, the intelligence of the parties involved, the means and opportunity of knowing the facts in which the parties are alleging, the probability and improbability of knowing the facts and the interest and personal credibility of each party. All these would help in rendering final judgement for the court.

REFERENCES

Domingo v Rayala, G.R. No. 158700, February 18, 2008. In Philippine Aeolus Automotive United Corporation v. National Labor Relations Commission, 387 Phil. 256, 265 (2000).

Republic Act 7877 (1995). An Act Declaring Sexual Harassment Unlawful in the Employment, Education or Training Environment, and for other Purposes.

 

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