On December 27, 2023, the Colombian Minister of Labour highlighted several irregularities at a well-known fishing company’s plant. The next day, media reports claimed that the company’s female employees “don’t have time to go to the bathroom.” The company rejected the minister’s statements and announced legal action against the ministry.

Regardless of the media reports’ accuracy, the protections companies are expected to provide in the workplace are increasingly scrutinized by authorities and the public. Employers are now expected to take measures that go beyond physical working conditions and include preventing and managing harassment within their workplaces.

The Rise in Harassment Cases

Due to the increasing number of workplace harassment cases and stricter regulations in Colombia and other jurisdictions, this trend continues to gain momentum. According to the International Labour Organisation (ILO), 23% of workers have experienced harassment in their companies, with 17.9% reporting psychological harassment, 8.5% reporting physical harassment, and 6.3% reporting sexual harassment.

The ILO defines workplace harassment as a set of unacceptable behaviors and practices, or threats of such behaviors and practices, occurring once or repeatedly, aiming to cause or likely to cause physical, psychological, sexual, or economic harm. This includes gender-based violence and harassment.

The ILO also recognizes underreporting of workplace harassment, as only half of those surveyed reported the incident to a family member or friend, and an even smaller percentage used formal or informal reporting mechanisms. In Latin America, these figures can be even more concerning. For example, in Peru, 25% of women have experienced sexual harassment in the workplace, but only 4% have reported it.

Taking a Proactive Approach

For employees, harassment consequences can include low productivity, anxiety, depression, and even suicide risk. For companies, the impacts can be monetary, reputational, and legal. In jurisdictions such as Spain, board members and executives can be financially and criminally sanctioned for failures in preventing and responding to harassment cases. Consequently, companies have greater incentives to proactively investigate and respond to harassment cases.

In Colombia, companies leading this trend tend to be those listed on stock exchanges like New York or London, which are required to maintain high standards of corporate governance, and companies with foreign shareholders, especially from the US or the EU. This group of companies is joined by some international non-governmental organizations (NGOs), whose stakeholders pay special attention to the prevention, detection, and treatment of workplace harassment cases.

Mitigating Risks of Workplace Harassment

In a context where the risks from workplace harassment are increasing, companies can take several steps to mitigate or even stop them. As with other areas of risk management, prevention is better than correction. Companies with prevention programs usually achieve better resource use and a greater impact than companies that only respond to emerging cases.

Successful prevention programs include, at a minimum, the following five key steps:

1. Create Specific Policies and Protocols: Establish policies and protocols against harassment, including commitments to respond and maintain confidentiality of complaints.
2. Leadership Commitment: Ensure leadership is committed to a zero-tolerance culture towards harassment.
3. Allocate Resources: Provide resources to carry out proactive work.
4. Provide Training: Offer periodic training on workplace harassment to all employees.
5. Implement Reporting Mechanisms: Set up appropriate and easily accessible reporting mechanisms, such as an ethics hotline.

It is essential that, when a harassment complaint is received, the company conducts a thorough, independent, and effective investigation. Failure to do so has dire consequences, especially for organizational culture, which is one of the most important assets a company has.

Third-Party Investigations

Very few human resources, legal, or compliance teams have the training and resources necessary to investigate these cases effectively and in alignment with best practices. In many cases, they cannot guarantee the autonomy required for such an investigation. For this reason, there is a growing tendency to bring in an independent, specialized third party to carry out these investigations.

Involving a third party in an investigation offers several advantages for both companies and employees. Investigations conducted by an external actor provide greater guarantees of objectivity and impartiality to all stakeholders. A specialized third party can bring technical knowledge and resources that the company may lack internally. Finally, entrusting the investigation to an external party sends a strong message about the company’s commitment to the issue.

A Mixed Approach to Investigations

It is wise for the investigation team to apply a mixed approach to the case. A combination of traditional investigation elements, such as the methodology of the Association of Certified Fraud Examiners (ACFE), and those of exploitation, abuse, and sexual harassment investigations, such as the Core Humanitarian Standard (CHS) model, is recommended. Given the sensitivity of such cases, investigation teams should include people from various genders and have knowledge or awareness of gender issues, experience in similar cases, and specialized training and accreditation from expert organizations.

Additionally, due to the sensitivity and complexity of workplace harassment investigations, it is advisable to focus on the victims and provide them with sufficient protection throughout the process (even after it has concluded, to avoid re-victimization).

A key part of the success of such investigations is the tools used. Typically, a robust and comprehensive workplace harassment investigation involves various activities, including structured interviews, forensic image acquisition, processing and analysis, data analytics, and anonymous surveys.

Legal Coordination

It is important to conduct these investigations in close coordination with legal advisors. The work carried out by the company (and, if applicable, by external actors) must be admissible as evidence in potential disciplinary, administrative, labor, or criminal proceedings. Each investigation stage must include all necessary legal safeguards, including confidentiality of information, protection of attorney-client privilege, preservation of the chain of custody in handling physical or electronic devices and information, and informed consents, among others.

Commit to Action

Workplace harassment cases have increased, as has the attention given to how organizations treat and prevent them. Companies that support their good intentions with effective actions can turn a risk factor into a strength, demonstrating their commitment to creating harassment-free environments for their employees and stakeholders.