Challenges in Investigating Sexual Harassment in the Workplace in Mexico
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novembre 13, 2024
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International and Mexico Guidelines
International Context
The UN initiative, the United Nations Global Compact, leads corporate sustainability and in its Ten Principles establishes that “Businesses should support and respect the protection of internationally proclaimed human rights”; and (Principle 1) and that companies must ensure that “they are not complicit in human rights abuses” (Principle 2).1 Given that sexual harassment is directly related to human rights, particularly regarding equality, dignity, security, and the freedom to live without violence, companies have a duty to prevent this type of harassment. Furthermore, if an incident does occur, companies must be prepared to conduct a thorough investigation to avoid being complicit in human rights violations.
SDG 5 of the 17 Sustainable Development Goals (“SDG”) focuses on Gender Equality, aiming to “achieve gender equality and empower all women and girls”. According to the UN Global Compact, this equality is essential for sustainable development.2 However, the International Labour Organization (“ILO”) reports that despite progress, women and girls still face inequalities and higher rates of violence and harassment, underscoring the need for improved policies and investigations related to the issue.3
According to a survey conducted by the Global Network for Advanced Management, sexual harassment in the workplace persists, with 42% of women and 15% of men reporting sexual harassment or gender discrimination in the workplace.4
Workplace violence has become such a concern that provisions have been incorporated into the trade agreement between Mexico, the United States and Canada. Article 23.7, titled “Violence Against Workers”, establishes that the signatory countries must ensure that workers and unions can exercise their labor rights in a climate that is free from violence, threats and intimidation, and that related incidents must be effectively addressed.5 This trade agreement emphasizes that no country should overlook incidents of violence, or threats connected to the exercise of labor rights.
Additionally, “Convention 190 on Violence and Harassment in the World of Work”, ratified by Mexico on March 15, 2022, defines violence and harassment in the workplace, recognizing the right to a work environment free from these behaviors. Article 4.2 requires countries to adopt an inclusive and gender-sensitive approach to preventing violence and ensuring effective investigation mechanisms. Article 10 highlights the need for complaint and investigation procedures in the workplace.6
Local Context – Mexico
Different studies conducted in Mexico indicate that one of the main challenges that organizations face related to harassment in the workplace, including sexual harassment, is the lack of documented evidence from investigations and corrective actions that are implemented, as well as insufficient training. According to the Mexican Ministry of Labor and Social Welfare (“STPS”), 23% of the surveyed population has been victim of workplace harassment. The National Survey on the Dynamics of Household Relationships (“ENDIREH”) reveals that at least 7.9 million women have experienced violence at work.7
According to the ENDIREH survey conducted in 2021,8 14.4% of women surveyed had experienced sexual violence, with most incidents perpetrated by co-workers, followed by supervisors or managers. Over 50% of sexual incidents occur in the workplace.
An alarming statistic is that 72.7% of the women interviewed were unaware of the existence of protocols for addressing workplace violations. Furthermore, of the women who experienced violence, only 36% reported the incident to a supervisor or workplace authority. This shows that the majority choose not to report their experiences, while 93.5% did not file a formal complaint with authorities. Reasons for this include fear of retaliation, the belief that they will not be taken seriously, shame, and a lack of knowledge on how and where to report.
Governance and Compliance
Mexican authorities have a fundamental moral responsibility to ensure a safe and respectful work environment where everyone can work without fear of sexual harassment. This responsibility includes conducting thorough investigations into any workplace harassment complaints and fostering a culture of respect and support for victims. By taking appropriate action and protecting those who report harassment, institutions reinforce their ethical duty to promote equality and dignity in the workplace.
In Mexico, the legal framework includes various laws and agreements that define and prohibit sexual harassment, including workplace harassment. The Federal Labor Law, in Article 3 Bis, defines the sexual harassment and demands that employers implement protocols to address such cases.9 The Federal Law to Prevent and Eliminate Discrimination, in Article 9 XXVIII, lists discriminatory behaviors, including those that incite physical, sexual, or psychological violence.10 Additionally, the General Law on Women’s Access to a Life Free of Violence, Chapter II defines workplace violence and outlines the responsibilities of three levels of government in this area.11
General Administration Agreement IX/2021 and Official Mexican Standard 035 establish clear guidelines on the prevention and response to sexual harassment, as well as the obligation to investigate any and all complaints.12, 13 These regulations reflect an institutional commitment to eradicating harassment and ensuring a workplace free from violence and discrimination. Finally, the Federal Penal Code, Fifteenth Title – Crimes Against Freedom and Normal Psychosexual Development defines and punishes those who harass or coerce with lascivious intent.14
Economic and Reputational Impact of Sexual Harassment in the Workplace
Failure to comply with regulations or best practices that foster an ethical culture in organizations, as well as the lack of follow-up or investigation into cases of workplace sexual harassment, not only damages employee morale and causes professional issues, but can also result in serious reputational harm, impacting business operations and a company’s bottom line. A notable example is the case of Roger Ailes, then CEO of Fox News. The case became public in 2016 when several women, including news anchors, accused him of sexual harassment. These allegations led to his resignation and caused a major media scandal, damaging Fox News’ reputation and resulting in financial losses of tens of millions of dollars due to settlements paid by the company and by Ailes. Following this case, multiple lawsuits were filed, leading to a decline in the company’s public image.
Challenges in Investigations
Sexual harassment investigations are inherently complex and present significant challenges, particularly when conducted internally. In order to avoid bias, stigma or prejudice, it is ideal that investigations of this nature be conducted by a team of specialized, experienced, external and independent investigators.
Maintain the highest level of confidentiality in investigations conducted by company personnel also represents a significant challenge that could impact both the impartiality and outcome. Lastly, the lack of personnel or resources can limit departments’ ability to carry out thorough and effective investigations, putting the correct resolution of these cases at risk.
What Can Be Done?
Clear Protocols: it is essential to develop and establish specific protocols for investigating sexual harassment, including steps to follow, roles, responsibilities, and secure reporting mechanisms. The “Protocol for Addressing Workplace Violence, Harassment and Sexual Harassment” for companies in Mexico offers useful information to help design these protocols. However, it is worth noting that this protocol lacks specific detail on how to conduct investigations and the key aspects that must be considered while managing a case.
Specialized Training: internal teams responsible for handling these cases (internal investigations, audits, human resources) should receive specific training on how to manage sexual harassment investigations, covering legal, psychological and sensitivity aspects.
Involvement of Specialists: engaging external investigators can ensure an impartial and objective investigation. These investigators should have experience handling such cases and possess an appropriate methodology, particularly for conducting interviews, a critical and high-risk aspect. The decision to outsource investigations should be reflected in the internal protocol.
Evaluation and Continuous Improvement: periodically evaluating investigation procedures and implemented protocols and adjusting them as necessary will improve their effectiveness.
How Can We Help?
This document outlines how workplace sexual harassment cases present a high degree of difficulty in investigations, as the perpetrator is often someone within the organization, which can influence the process. Additionally, many companies lack the human and material resources necessary to conduct a thorough investigation. In this context, FTI Consulting stands out as an ideal option for investigating workplace sexual harassment cases, offering a comprehensive and professional approach that addresses all the critical aspects of this sensitive issue.
Our multidisciplinary team is comprised of highly trained experts in, investigations (ACFE-certified investigators), ethics management, auditing, and forensic technology. We have the capability to conduct background checks, mobile device analysis, and computer forensic investigations, ensuring the precise and effective collection of evidence. With extensive experience in interviews, we guarantee these processes are handled with the necessary sensitivity and rigor. FTI Consulting is committed to ensuring a confidential and transparent process, creating a safe environment for victims who wish to report incidents.
In addition to supporting investigations, FTI Consulting provides training on investigation processes and assertive interviews, empowering our clients’ staff with key skills. We also assist in designing investigation protocols and sanctions tailored to each organization’s specific needs. This enables companies not only to meet their legal obligations but also to promote a safe, respectful, and proactive work environment against sexual harassment.
Footnotes:
1: https://unglobalcompact.org/what-is-gc/mission/principles
2: https://www.un.org/sustainabledevelopment/gender-equality/
6: https://normlex.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190
7: https://www.milenio.com/negocios/mexico-enfrenta-una-problematica-de-acoso-laboral-rankmi
9: Ley_Federal_del_Trabajo.pdf
10: Ley Federal para Prevenir y Eliminar la Discriminación
11: Ley General de Acceso de las Mujeres a una Vida Libre de Violencia
12: DOF - Diario Oficial de la Federación
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Date
novembre 13, 2024
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