Q & A: Sexual Harassment Cases

Release Date: 

Monday, March 3, 2008

 

WHAT IS SEXUAL HARASSMENT?

It is an act or a series of acts involving any unwelcome sexual advance, request or demand for a sexual favor, or other verbal or physical behavior of a sexual nature, committed by a government employee or official in a work-related, training- or education- related environment.

WHAT IS THE POLICY OF THE STATE ON SEXUAL HARASSMENT?

Sexual harassment, which has been declared unlawful in the workplace, training and education environments, will not be tolerated as it violates the dignity and human rights of a person.

WHAT IS THE PRESENT LAW ON SEXUAL HARASSMENT?

R.A. 7877, an “Act Declaring Sexual Harassment Unlawful in the Employment, Education or Training Environment, and for other purposes” was approved on February 14, 1995 and became effective on March 5, 1995, fifteen (15) days after its publication in the Malaya and Times Journal on February 18, 1995. It is known as “The Anti-Sexual Harassment Act of 1995.”

WHAT IS CIVIL SERVICE COMMISSION (CSC) RESOLUTION NO. 01-0940?

It is known as the Administrative Disciplinary Rules on Sexual Harassment Cases.

WHAT IS THE EFFECT OF CSC RESOLUTION NO. 01-0940 TO PRIOR ISSUANCES OF THE CSC AND THE DEPARTMENT OF LABOR AND EMPLOYMENT?

It supersedes or repeals prior CSC issuances such as MC No. 19, s. 1994 and CSC Res. 95-6161. DOLE Administrative Order No. 250, s. 1995 has to be amended accordingly or replaced altogether, in consonance with the changes made in the new CSC Rules on Sexual Harassment.

WHERE CAN SEXUAL HARASSMENT BE COMMITTED UNDER THE PROVISIONS OF CSC RESOLUTION                  NO. 01-0940?

Sexual harassment may take place:

1. in the premises of the workplace or office or of the school or training institution;

2. in any place where the parties were found, as a result of work or education or training responsibilities or relations;

3. at work or education- or training-related social functions;

4. while on official business outside the office or school or training institution or during work or school or training-related travel;

5. at official conferences, fora, symposia or training sessions; or

6. by telephone, cellular phone, fax machine or electronic mail. 

WHEN IS SEXUAL HARASSMENT COMMITTED IN THE EMPLOYMENT OR WORK-RELATED ENVIRONMENT?

Work-related sexual harassment is committed when:

1. the submission to or rejection of the act or series of acts is used as basis for any employment decision (including but not limited to, matters related to hiring, promotion, raises in salary, job security, benefits and any other personnel action) affecting the applicant/employee; or

2. the act or series of acts have the purpose or effect of interfering with the complainant’s work performance, or creating an intimidating, hostile or offensive work environment; or

3. the act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a co-employee, applicant, customer, or ward of the person complained of.

WHEN IS SEXUAL HARASSMENT COMMITTED IN AN EDUCATION OR TRAINING ENVIRONMENT?

Education or training related sexual harassment is committed when:

1. the submission to or rejection of the act or series of acts is used as a basis for any decision affecting the complainant, including, but not limited to, the giving of a grade, the granting of honors or a scholarship, the payment of a stipend or allowance, or the giving of any benefit, privilege or consideration; or

2. the act or series of acts have the purpose or effect of interfering with the performance, or creating an intimidating, hostile or offensive academic environment of the complainant; or

3. the act or series of acts might reasonably be expected to cause discrimination, insecurity, discomfort, offense or humiliation to a complainant who may be a trainee, apprentice, intern, tutee or ward of the person complained of.

WHEN IS A GOVERNMENT OFFICIAL/EMPLOYEE LIABLE FOR SEXUAL HARASSMENT?

A government official or employee, regardless of sex, is liable for sexual harassment when he/she:

1. directly participates in the execution of any act of sexual harassment as defined by the Administrative Disciplinary Rules on Sexual Harassment Cases;

2. induces or directs another or others to commit sexual harassment as defined by these Rules;

3. cooperates in the commission of sexual harassment by another through an act without which the sexual harassment would not have been accomplished; or

4. cooperates in the commission of sexual harassment by another through previous or simultaneous acts.

WHAT ARE THE FORMS OF SEXUAL HARASSMENT?

1. Physical

a. Malicious touching

b. Overt sexual advances

c. Gestures with lewd insinuation  

2. Verbal, such as but not limited to, requests or demands for sexual favors, and lurid remarks

3. Use of objects, pictures or graphics, letters or written notes with sexual underpinnings

4. Other forms analogous to the foregoing. 

WHAT ARE THE FUNCTIONS OF THE COMMITTEE ON DECORUM AND INVESTIGATION (CODI) IN SEXUAL HARASSMENT CASES?

The CODI shall:

1. Receive complaints of sexual harassment;

2. Investigate sexual harassment complaints in accordance with the prescribed procedure;

3. Submit a report of its findings with the corresponding recommendation to the disciplining authority for decision; and

4. Lead in the conduct of discussions about sexual harassment within the agency or institution to increase understanding and prevent incidents of sexual harassment.

WHAT IS THE COMPOSITION OF THE CODI?

At least one (1) representative each from:

1. In a work-related environment:

i. the management

ii. the accredited union (if any)

iii. the first level employees iv. the second level employees

2. In an educational/training institution:

i. the administrator

ii. the trainers, teachers, instructors, professors or coaches

iii. the students or trainees

The term of office of the members of the CODI shall not be more than two (2) years.

AT THE PRE-FILING STAGE, WHAT ASSISTANCE CAN THE AGENCY PROVIDE TO AN ALLEGED VICTIM OF SEXUAL HARASSMENT?

The agency may adopt mechanism to provide assistance to an alleged victim of sexual harassment which may include:

1. counseling;

2. referral to an agency offering professional help; and

3. advice or options available before the filing of the complaint.

WHAT ARE THE STANDARD PROCEDURAL REQUIREMENTS IN HANDLING A SEXUAL HARASSMENT CASE?

1. When can a complaint for sexual harassment be filed?

Anytime

2. With whom can a complaint file a complaint for sexual harassment be filed?

With the disciplining authority of the office/ agency; or with the Committee on Decorum and Investigation. Upon receipt of the complaint, the disciplining authority of the office/agency shall transmit the same to the CODI, if there is any.

In the absence of a CODI, the head of office/agency shall cause the creation of a CODI in accordance with the law and rules and transmit the complaint to said Committee.

3. What are the requirements for a complaint?

It must be in writing, signed and sworn to by the complainant, and contains the following:

             Full name and address of the complainant;  

             Full name, address, and position of the respondent;

             A brief statement of the relevant facts;

             Residence, in support of the complaint, if any; and

             A certification of non-forum shopping.  

In the absence of any one of the aforementioned requirements, the complaint shall be dismissed without prejudice to its refilling.

4. Are complaints sent thru telegram, radiogram, electronic mail or similar means considered as filed?

Yes, if the requirements provided in Section 12 (b) of Resolution No. 01-0940 are complied with. In the absence of the said requirements, the complaint is considered non-filed. Complainant has to be notified to comply within ten (10) days from receipt of the notice for compliance.

5. Shall the withdrawal of the complaint at any stage of the proceedings preclude the CODI from proceeding with the investigation?

When there is obvious truth or merit to the allegations in the complaint or where there is documentary or direct evidence that can prove the guilt of the person complained of, the CODI can proceed with the investigation.

WHAT WILL BE THE ACTION OF THE CODI ON THE COMPLAINT?

1. Counter-Affidavit/Comment of Person Complained of

Upon receipt of a complaint that is sufficient in form and substance, the CODI shall require the person complained of to submit a Counter-Affidavit/Comment under oath within three (3) days from receipt of the notice, furnishing a copy to the complainant; otherwise, the Counter-Affidavit/ Comment shall be considered as not filed.

2. Preliminary Investigation

The CODI shall conduct a preliminary investigation which shall involve the ex parte examination of documents submitted by the complainant and the person complained of, as well as documents readily available from other government offices.

During the preliminary investigation, the parties may submit affidavits and counter-affidavits.

3. Formal Charge

Upon receipt of the counter-affidavit/comment under oath, the Committee on Decorum and Investigation may now recommend whether a prima facie case exists to warrant the issuance of a formal charge.

Strict confidentiality of the proceedings during preliminary investigation by the CODI shall be exercised.

WHAT SHALL BE THE DURATION OF THE PRELIMINARY INVESTIGATION?

The preliminary investigation shall commence not later than five (5) days from receipt of the complaint by the CODI. It shall be terminated within fifteen (15) working days thereafter.

WHEN WILL THE CODI SUBMIT ITS INVESTIGATION REPORT ON THE PRELIMINARY INVESTIGATION?

The CODI shall submit the Investigation Report and the complete records of the case to the disciplining authority within five (5) working days from the termination of the preliminary investigation.

WHAT WILL BE THE ACTION OF THE DISCIPLINING AUTHORITY AFTER PRELIMINARY INVESTIGATION?

Within three (3) working days from receipt of the investigation report, the disciplining authority shall issue a formal charge if a prima facie case is established during the investigation. If a prima facie case is not established during the investigation, the complaint shall be dismissed within three (3) working days from receipt of the investigation report.

WHAT ARE THE CONTENTS OF THE FORMAL CHARGE?

1. A specification of the charge/s;

2. A brief statement of material or relevant facts;

3. Certified true copies of the documentary evidence, if any;

4. Sworn statement covering the testimony of witness/es;

5. A directive to answer the charge/s in writing under oath in not less than seventy-two (72) hours from receipt thereof;

6. An advice for the respondent to indicate in his/her answer whether or not he/she elects a formal investigation of the charges; and

7. A notice that he/she is entitled to be assisted by a counsel of his/her choice.

CAN THE RESPONDENT SUBMIT ADDITIONAL EVIDENCE/S AFTER THE PRELIMINARY INVESTIGATION?

Yes, even if he has already submitted his/her comment/s and counter affidavits during the preliminary investigation.

WHAT WILL BE THE CONTENT OF THE ANSWER OF THE RESPONDENT?

The answer, which must be in writing and under oath, shall be specific and shall contain material facts and applicable laws, if any, including documentary evidence/s, sworn statements covering testimonies of witnesses, if any, in support of respondent's case. It shall also include a statement indicating whether he/she elects a formal investigation. The answer must be filed within seventy-two (72) hours from receipt thereof.

WHAT WILL BE THE EFFECT IF RESPONDENT FAILS OR REFUSES TO ANSWER WITHIN THE 72 HOURS REQUIREMENT?

It shall be considered a waiver of respondent’s right to answer and a formal investigation may commence.

WHEN CAN PREVENTIVE SUSPENSION BE APPLIED?

Preventive suspension can be applied upon petition of the complainant or motu propio upon the recommendation of the CODI after the service of the Formal Charge to the respondent.

The proper disciplining authority may order the preventive suspension during the formal investigation, if there are reasons to believe that the person complained of is probably guilty of the charges which would warrant his/her removal from the service.

WHAT IS THE PURPOSE OF THE PREVENTIVE SUSPENSION?

An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his/her malfeasance or misfeasance and to preclude the possibility of his/her exerting undue influence or pressure on the witnesses against his/her tampering of documentary evidence on file with this Office.

HOW LONG IS THE PERIOD OF PREVENTIVE SUSPENSION?

Preventive suspension for an administrative case shall not be more than ninety (90) days unless otherwise provided by a special law.

WHAT REMEDIES FROM THE PREVENTIVE SUSPENSION CAN BE AVAILED OF BY THE RESPONDENT?

Within fifteen (15) days from receipt of order, respondent may:

1. file a motion for reconsideration with the disciplining authority; or

2. elevate the same to the Civil Service Commission by way of an appeal. 

WHEN CAN A FORMAL INVESTIGATION BE CONDUCTED? BY WHOM?

If the CODI deems that a formal investigation is necessary to decide the case judiciously, it shall conduct an investigation not earlier than five (5) days nor later than ten (10) days from receipt of the respondent’s answer. It shall be finished within thirty (30) days from the issuance of the formal charge or the receipt of the answer unless the disciplining authority extends the period.

WHAT IS THE PRE-HEARING CONFERENCE?

The pre-hearing conference may be conducted by the CODI at the commencement of the formal investigation to agree on matter/s that would expedite the hearing.

The hearing proper and the order of presentation of evidence/s is governed by Sections 26 to 35 of the Administrative Disciplinary Rules on Sexual Harassment Cases of the CSC.

WHEN IS THE FORMAL INVESTIGATION REPORT SUBMITTED? TO WHOM?

Within fifteen (15) days after the conclusion of the formal investigation, a report containing a narration of the material facts established during the investigation, the findings and the evidence supporting said findings, as well as the recommendations, shall be submitted by the CODI to the disciplining authority together with the complete records of the case.

Within thirty (30) days from receipt of the investigation report, the disciplining authority shall render his/her decision on the case.

WHEN IS A DECISION ON A SEXUAL HARASSMENT CASE BY THE DISCIPLINING AUTHORITY FINAL AND EXECUTORY?

The decision of the disciplining authority is final and executory when the penalty of suspension is not more than thirty (30) days or a fine of not more than the equivalent of thirty (30) days salary is imposed.

WHEN IS A PENALTY OF SUSPENSION APPEALABLE TO THE CIVIL SERVICE COMMISSION?

A penalty of suspension exceeding thirty (30) days or a fine exceeding the equivalent of thirty (30) days salary of the respondent shall be appealable to the ommission after the lapse of the reglamentary period for filing a motion for reconsideration or an appeal and no such pleading has been filed.

WHAT ARE THE REMEDIES AFTER A DECISION?

1. Motion for reconsideration by the adversed party

2. Appeal to the Civil Service Commission if penalty imposed exceeds thirty (30) days suspension or fine exceeding the equivalent of thirty (30) days salary. The appeal may be initially appealed to the department head (for decisions rendered by the bureau or office head that are appealable to the CSC)

3. Petition for review with the CSC by a complainant for a decision of a disciplining authority dismissing a complaint for lack of prima facie case

4. Petition for review with the Court of Appeals on a decision made by the CSC

5. Petition for certiorari in the proper court by the aggrieved party 

WHEN CAN A MOTION FOR RECONSIDERATION BE FILED BY THE ADVERSED PARTY?

The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the decision within fifteen (15) days from receipt thereof.

Such is deemed filed on the date stamped on the official copy by the proper receiving authority, and if sent by mail, on the date shown by the postmark on the envelope, which shall be attached to the records of the case.

The filing of the motion for reconsideration within the reglamentary period shall stay the execution of the decision sought to be reconsidered.

WHAT CAN BE THE BASIS FOR A MOTION FOR RECONSIDERATION?

1. New evidence has been discovered which materially affects the decision rendered; or

2. The decision is not supported by the evidence on record; or

3. Errors of law or irregularities have been committed prejudicial to the interest of the movant.

CAN THERE BE MORE THAN ONE MOTION FOR RECONSIDERATION?

No, only one motion for reconsideration shall be entertained. 

WHEN CAN AN APPEAL FOR DECISIONS OF HEADS OF DEPARTMENTS, PROVINCES, CITIES, MUNICIPALITIES AND OTHER INSTRUMENTALITIES BE APPEALED TO THE CSC?

For a decision where the penalty imposed is more than thirty (30) days suspension or a fine exceeding the equivalent of thirty (30) days salary, it may be appealed to the CSC within a period of fifteen (15) days from receipt thereof.

A notice of appeal, including the appeal memorandum, shall be filed with the appellate authority with a copy furnished to the disciplining office. The latter shall submit the records of the case, which shall be automatically and chronologically arranged, paged and securely bound to prevent loss with its comment within fifteen (15) days, to the appellate authority.

WHEN IS THE APPEAL DEEMED FILED? HOW MUCH IS THE APPEAL FEE?

An appeal sent by mail shall be deemed filed on the date shown by the postmark on the envelope, which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office.

The appellant shall pay an appeal fee of three hundred pesos (P300.00) and a copy of the receipt shall be attached to the appeal. 

WHEN IS AN APPEAL PERFECTED?

The appeal is perfected when the appellant shall have submitted within fifteen (15) days from receipt of the decision the following:

1. Notice of appeal which shall specifically state the date of the decision appealed from and the date of receipt thereof;

2. Three copies of appeal memorandum containing the grounds relied upon for the appeal, together with the certified true copy of the decision, resolution or order appealed from, and certified copies of the document or evidence;

3. Proof of service of a copy of the appeal memorandum to the disciplining office;

4. Proof of payment of the appeal fee; and

5. A statement or certification of non-forum shopping

WHAT IS THE EFFECT OF FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS WITHIN THE REGLAMENTARY PERIOD?

It shall be construed as failure to perfect an appeal and shall cause its dismissal.

WILL AN APPEAL FILED STOP THE DECISION FROM BEING EXECUTORY?

The appeal shall not stop the decision from being executory.

In case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the period of the appeal, in the event he wins the appeal.

WHAT IS THE CLASSIFICATION OF ACTS OF SEXUAL HARASSMENT?

Sexual Harassment is classified as:

1. Grave Offenses

a. unwanted touching of private parts of the body (genitalia, buttocks, and breast);

b. sexual assault;

c. malicious touching;

d. requesting for sexual favor in exchange for employment, promotion, local or foreign travels, favorable working conditions or assignments, a passing grade, the granting of honors or scholarship, or the grant of benefits or payment of a stipend or allowance; and

e. other analogous cases.

2. Less Grave Offenses

a. unwanted touching or brushing against a victim’s body;

b. pinching not falling under grave offenses;

c. derogatory or degrading remarks or innuendoes directed toward the members of one sex or one’s sexual orientation or used to describe a person;

d. verbal abuse or threats with sexual overtones; and

e. other analogous cases.

3. Light Offenses

a. surreptitiously looking or stealing a look at a person’s private part or worn undergarments;

b. telling sexist/smutty jokes or sending these through text, electronic mail or other similar means, causing embarrassment or offense and carried out after the offender has been advised that they are offensive or embarrassing or, even without such advise, when they are by their nature clearly embarrassing, offensive or vulgar;

c. malicious leering or ogling;

d. the display of sexually offensive pictures, materials or graffiti;

e. unwelcome inquiries or comments about a person’s sex life;

f. unwelcome sexual flirtation, advances, propositions;

g. making offensive hand or body gestures at an employee;

h. persistent unwanted attention with sexual overtones;

i. unwelcome phone calls with sexual overtones causing discomfort, embarrassment, offense or insult to the receiver; and

j. other analogous cases.

The head of the agency who fails to act on the complaint within fifteen (15) days from receipt of any complaint for sexual harassment properly filed against any employee in that office shall be charged with neglect of duty.

Any person found guilty of sexual harassment shall, after the investigation, be meted the penalty corresponding to the gravity of the offense.

WHAT ARE THE PENALTIES FOR OFFENSES OF SEXUAL HARASSMENT?

1. Grave offenses - Dismissal

2. Less grave offenses

       1 st offense - Fine or suspension for thirty (30) days but not exceeding six (6) months

       2 nd offense - Dismissal

3. Light offenses

       1 st offense - Reprimand

       2 nd offense - Fine or suspension not exceeding thirty (30) days

       3 rd offense - Dismissal

WHAT PENALTY SHALL BE APPLIED IF THE RESPONDENT IS FOUND GUILTY OF TWO (2) OR MORE CHARGES OR COUNTS?

The penalty to be imposed shall be that corresponding to the most serious charges or count and the rest shall be considered as aggravating circumstances. 

WHAT ARE THE DUTIES OF THE AGENCIES OF THE GOVERNMENT ACCORDING TO THE CIVIL SERVICE COMMISSION (CSC) ADMINISTRATIVE DISCIPLINARY RULES ON SEXUAL HARASSMENT CASES?

All national and local government agencies, state colleges and universities, including government-owned or controlled corporations with original charter, shall promulgate or modify their own rules and regulations in conformity with these Rules, in consultation with their employees, within six (6) months from the effectivity of this Resolution.

All agencies of the government shall submit an authenticated copy of their rules and regulations on sexual harassment to the Commission for approval within one (1) month from the date of their promulgation. It shall likewise submit to the Commission a list of the members of their Committee on Decorum and Investigation immediately after its composition.

All agencies of the government shall develop an education and training program for their officials and employees and the members of their Committee on Decorum and Investigation to increase understanding about sexual harassment, prevent its occurrence, and ensure proper investigation, prosecution and resolution of sexual harassment cases.

The head of office who, after six (6) months from the affectivity of this resolution, fails to cause the promulgation or modification of the agency’s rules and regulations on sexual harassment in conformity with these rules, shall be charged with neglect of duty.

WHAT SHALL APPLY TO A CASE OF SEXUAL HARASSMENT WHEN THE AGENCY IS STILL IN THE PROCESS OF PROMULGATING OR MODIFYING ITS OWN RULES AND REGULATIONS?

During the period when the agency is still in the process of promulgating or modifying its own rules and regulations on sexual harassment, a complaint alleging acts constituting sexual harassment shall be administratively prosecuted, resolved and adjudicated based on these Rules.

Source: Civil Service Commission (CSC), Administrative Disciplinary Rules on Sexual Harassment Cases.

               Resolution No. 01-0940, May 21, 2001

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