Sexual harassment in the workplace against LGBTIQ+ people: challenges facing the reporting and protection system in Peru
The Real Plaza Trujillo disaster, which occurred on February 21, not only highlights deficiencies in inspection practices and enforcement of structural safety regulations, but also highlights the tensions
In 2023, a fragment of an interview with a trans woman about her experiences in the Peruvian workplace went viral on the globally recognized platform “TikTok.” When asked about her experience practicing law, she commented that, after beginning to live according to her gender identity, she encountered various barriers to accessing job opportunities. These manifested in comments such as “you can be very good, but you have to stop dressing like a woman,” which were made by Human Resources departments and even her future employers during her interviews. From this, the interviewee comments that she initially experienced a feeling of resignation to enduring ridicule, humiliation, and laughter at her workplace, given the fear of being fired if she filed a sexual harassment complaint.
This story summarizes the situation of many lesbian, gay, bisexual, transgender, intersex, queer, and other groups not represented by the aforementioned categories (LGTIQ+) in the Peruvian workplace and demonstrates the need to constantly analyze the effectiveness of existing mechanisms for reporting sexual harassment. This task is vitally important, given that relying solely on formal and ineffective means will prolong the violation of fundamental rights such as identity, human dignity, and the right to work in a safe environment—all recognized in our current constitutional text.
First, it is necessary to conceptualize the term “sexual harassment,” which is any unwanted sexual or sexist conduct that could compromise the employment relationship or create a hostile or intimidating environment. It is undeniable that there are countless testimonies from LGBTIQ+ people who report experiencing sexist conduct at work, which has been expressed through stereotypes, harassment, and microaggressions based on gender identity. For example, we find stereotypes that establish the idea that people with gender-nonconforming identities are less competent at their jobs, harassment through offensive comments in mocking tones directed at them, and microaggressions that imply their invisibility. All of this creates a hostile or intimidating environment that requires effective reporting mechanisms to eradicate this problem.
Specifically, our legislation seeks to establish a reporting, investigation, and sanctioning procedure that effectively protects the rights of workers who have suffered workplace harassment. The Sexual Harassment Prevention and Punishment Act (Law No. 2792) provides a fast-track procedure that encompasses different stages within the company that receives the complaint. The initial stage begins with the protection of the alleged victim of sexual harassment by Human Resources, which, within a total of three days of receiving the complaint, provides medical and psychological support and dictates protective measures for the victim. After this initial phase, the investigation is entrusted to the Intervention Committee, which, within 15 days, will carry out the corresponding procedures, including notifying the accused. It is postulated that this stage may discourage most victims from filing complaints due to fear of retaliation.
This Committee will prepare a report with its findings and recommendations, which will be returned to the Human Resources department within one business day of its preparation. As a final step, Human Resources will prepare the final report on the complaint. It is important to emphasize that the Ministry of Labor and Employment will communicate the complaint to be filed and the final decision of Human Resources within the timeframes established in Law No. 27942.
We agree that this procedure has reasonable timeframes that demonstrate the intention to provide immediate support to the harassed worker; however, there is another worrying reality that refers to testimony such as that of Santiago, which details that the act of sexual harassment was carried out by his own employer, for which reason there may be another avenue for this worker to turn (Instituto de Estudios Sindicales, 2021). According to section g of Article 30 of the TUO (Tuo of the LPCL), acts of sexual harassment violate the dignity of the worker and, therefore, are considered acts of hostility. In this sense, the worker who is a victim of this type of violence can request the cessation of hostility and request compensation, terminating the employment contract. A point worth highlighting is the lack of a requirement to have previously resorted to the investigation and sanction procedure before resorting to other instances.
Along the same lines, it is noted that our legal system provides for a variety of institutions to which we can report sexual harassment, including the Judiciary, the Peruvian National Police, the company itself, the Public Prosecutor’s Office, and, finally, the National Superintendency of Labor Inspection. Regarding the latter, it is evident that the mechanisms described above will not be truly effective without constant oversight of their compliance. According to Report No. 175 of the Ombudsman’s Office, when SUNAFIL was asked for information on cases of discrimination, including cases of workplace sexual harassment, against LGBTIQ+ people that had been investigated by this agency, SUNAFIL reported that it had executed 22 orders for discrimination based on sex. However, after reviewing these orders, it was evident that none referred to complaints made by LGBTIQ+ workers for acts of segregation based on sexual orientation or their non-conforming gender identity. This situation is alarming, given that not only is there a gap in oversight, but we believe there must be a policy focused on promoting reporting mechanisms that truly apply a gender perspective.
Based on the above, it is necessary to reflect on whether we can confidently affirm the effectiveness of the existing regulations that address the problem of sexual harassment. The gender perspective present in the aforementioned regulations must embrace an intersectional approach that allows for greater attention and oversight of those belonging to the LGBTIQ+ community. This is based on the fact that their work experience is even more skewed by stereotypes that converge due to their sexual orientation, gender identity, and expression of said identity. Therefore, our legislation and monitoring mechanisms must be more comprehensive in preventing, reporting, investigating, sanctioning, and overseeing cases of sexual harassment.
Finally, this note seeks to remind us that it is not necessary to wait for Pride Month to arrive to reflect on the situation facing LGBTIQ+ people in our country. Rather, it is essential to raise collective awareness about the importance of recognizing the challenges they still face in basic areas of development, such as the workplace, in the 21st century.
At Thorne, Echeandía y Lema Abogados, we work with our clients to prevent these types of labor and immigration contingencies. Do not hesitate to contact us:
Rodrigo Varillas Cueto
Vanessa Mejía Mejía
Lucero Fernandez Maceda
María Fernanda Lazo
