On 21 June 2019, the International Labour Organization (ILO) adopted the landmark ILO Convention No. 190 (Convention concerning the Elimination of Violence and Harassment in the World of Work). The labour standards set in this Convention were negotiated over a two year period by ILO member governments, workers’ representatives, and employers’ organizations. The adoption of Convention No. 190 is itself revolutionary, considering that an estimated around 500 million working-age women live in countries are reported not to have any legal protections against harassment at work. The World Bank reported in 2018 that “in 59 countries, women are not legally protected from workplace sexual harassment. The lack of legal protection is observed in 70% of the economies in the Middle East and North Africa, half (50%) in East Asia and the Pacific, and one-third (33.3%) in Latin America and the Caribbean.”
In this post, I examine the key landmark detailed provisions of ILO Convention No. 190, and why they present significantly higher protections than the more rudimentary and general provisions in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the protections against sexual harassment indicated in the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). In my view, ILO Convention No. 190 largely closes the global regulatory gap on workplace sexual harassment, not just by repeating ICESCR and CEDAW protections, but by adopting the most sweeping application of these protections (and even more substantive protections) to all the foreseeable permutations and changing employment arrangements today in the world of work. Institutionally, the adoption of ILO Convention No. 190 also formally opens the door for ILO’s regular supervisory system to ensure this treaty’s implementation by States ratifying ILO Convention No. 190, including special procedures under the ILO Constitution, such as the complaints procedure (Articles 26 to 34 of the ILO Constitution) enabling any ILO Member State to file a complaint with the ILO if it finds that any other ILO Member State is not “securing effective observance of any Convention which both have ratified”. The ILO Governing Body can refer the complaint to a Commission of Inquiry for investigation. If the respondent ILO Member State does not accept the recommendations of the Commission on Inquiry, the ILO can propose to refer the dispute to the International Court of Justice. The expansive protections against workplace sexual harassment afforded in ILO Convention No. 190 to all persons (including women) could thus also be more strongly protected in the international legal system as well as in domestic legal systems.
In the age of MeToo and the increasing global awareness that vulnerabilities to workplace sexual harassment are highest in non-traditional work settings and arrangements where power imbalances are sharpest, ILO Convention No. 190 places human dignity at the center of the global regulatory paradigm. It will be much harder for workplace sexual harassers and those who commit violence at the workplace to escape and avoid legal responsibility anywhere in the world.
Innovations in ILO Convention No. 190
Ask any woman (or man) who has had to file a Title IX complaint for workplace or education setting sexual harassment in the United States, and among the serious hurdles that have to be overcome in undergoing Title IX litigation include, among others: 1) proving that the scope of legal protection applies to the given employment or educational setting; 2) avoiding the threat of retaliation while trying to preserve one’s professional or educational goals; 3) dealing with any social stigma, community reaction, and mental health impacts in relation to the prosecution of serious allegations against an authority figure; and most importantly, 4) dealing with any biases or subjectivities of the decision-maker in understanding what “sexual harassment” is for any given factual context.
The ICESCR generally guarantees that “women be guaranteed conditions of work not inferior to enjoyed by men” [ICESCR Article 7(a)(i)], but nowhere contains a definition of sexual harassment or addresses any of the hurdles discrimination litigants face, although the Committee on Economic, Social, and Cultural Rights (CESCR) already included freedom from sexual harassment as among the penumbra of guarantees under the ICESCR Article 7 right to just and favorable conditions of work [CESCR General Comment No.23, paras. 7, 48-49.]. Still, the CESCR leaves it to the States Parties to provide the legal definition of sexual harassment. [ICESCR General Comment No. 23, at para. 65(e)]. Likewise, CEDAW does not explicitly define sexual harassment or gender-based violence, but the Committee on the Elimination of All Forms of Discrimination Against Women [CEDAW General Recommendation 19, para. 6] links both concepts of sexual harassment and gender-based violence to the fundamental definition of discrimination under CEDAW Article 1 (e.g. “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”).
ILO Convention No. 190 takes a more direct approach and obviates the usual jurisdictional challenges against workplace harassment or violence (e.g. denying the existence of an employment relationship or characterizing the behavior as having taken place outside of the workplace setting thus outside the ambit of the employer’s supervision), and provides the broadest possible definition of sexual harassment and violence across the full spectrum of work arrangements:
1. For the purposes of this Convention:
(a) the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;
(b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.
1. This Convention protects workers and other persons in the world of work, including employees as defined by national law and practice, as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer.
2. This Convention applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas.
This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:
(a) in the workplace, including public and private spaces where they are a place of work;
(b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;
(c) during work-related trips, travel, training, events or social activities;
(d) through work-related communications, including those enabled by information and communication technologies;
(e) in employer-provided accommodation; and
(f) when commuting to and from work.” (Emphasis and italics added.)
Based on my own prior experiences with the many jurisdictional challenges as counsel quietly collaborating on sexual harassment and gender-based violence litigation matters in judicial and administrative proceedings in Southeast Asia (including my earliest cases on Filipina comfort women in World War II), the above definitions of gender-based violence and harassment and the scope of ILO Convention No. 190 would be particularly welcome to victims of gender-based violence and harassment in the workplace and work-related activities. The encompassing coverage of the acts of violence and harassment in Article 1 look to either the harmful purpose of the act, or an actual harmful outcome, or the reasonable probability, likelihood, and foreseeability of physical, psychological, sexual or economic harm, without needing to establish any pattern of conduct from the perpetrator of gender-based violence and harassment. The scope of ILO Convention No. 190 also broadly extends to violence and harassment in work-related activities (including social activities) as well as work-related communications technologies. This significantly makes it incumbent upon ILO Member States as well as employers to take a more active hand in preventing, as well as policing, gender-based violence and harassment throughout the corpus of a worker’s work life and work environment.
This model of regulation in ILO Convention No. 190 shifts the due diligence of ILO Member States and employers to what is often a passive, litigation-driven, case-by-case reactionary approach taken by States to gender-based violence and harassment, to one of active precaution in designing work conditions and regulations to avoid and sanction gender-based violence and harassment situations. From the standpoint of (named and unnamed) victims of gender-based violence and harassment, this nuanced approach to evidentiary burdens (e.g. from focusing just on individual perpetrator liability, to a parallel independent scrutiny of how the State and the employer observed their due diligence obligations) redresses much of the power imbalances between victims and perpetrators of gender-based violence and harassment in the world of work.
State Responsibilities under ILO Convention No. 190
ILO Convention No. 190 is now open for ratification of the ILO Member States. To this end, its provisions on State obligations must be carefully scrutinized, considering, as previously mentioned, that the ILO Constitution enables both regulatory supervisory mechanisms and special procedures (including complaints procedures) for any ILO Member State’s non-observance of any ILO Convention. ILO Convention No. 190 provides for extensive State obligations, such as obligations to:
respect, promote, and realize the fundamental rights and principles at work, including freedom of association and the effective recognition of collective bargaining rights, elimination of all forms of forced or compulsory labour, effective abolition of child labour, elimination of discrimination in respect of employment and occupation, and promotion of decent work [cf. Article 5];
adopt laws, regulations, and policies on the right to equality and non-discrimination, especially for those in situations of vulnerability disproportionately affected by violence and harassment in the world of work [cf. Article 6];
adopt national laws and regulations defining gender-based violence and harassment in the world of work, consistent with ILO Convention No. 190 [cf. Article 7];
take all appropriate measures to prevent violence and harassment in the world of work [cf. Article 8];
adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender- based violence and harassment, and in particular, so far as is reasonably practicable, to adopt workplace policies on violence and harassment, risk assessments, information and training. [cf. Article 9]; and
take appropriate measures to monitor and enforce national laws and regulations regarding violence and harassment in the world of work as well as to design the fullest possible range of remedies for victims – whether administrative or judicial, civil or criminal, among others – while providing for the fullest supportive measures (including legal, social, medical, administrative support) against retaliation and/or any imminent threats or dangers to life, health, or safety [cf. Article 10(a) to 10 (b); see also Article 11 on training, guidance, and awareness-raising].
We are in a considerably different world of normative and legal commitments to prevent and end gender-based violence and harassment in the workplace and work-related arrangements and activities, precisely because the landmark ILO Convention No. 190 transcends so many of the frequent jurisdictional and interpretive hurdles from indirect approaches to litigating sexual harassment based on individual national laws or the more attenuated provisions of the ICESCR or CEDAW. If ILO Convention No. 190 is widely ratified by all ILO Member States, I expect more victims to gain more confidence about coming forward and seeking timely, appropriate, and genuinely reparative justice in national and international legal systems, against the destructive indignities and injustices of gender-based violence and harassment in the world of work. Because of ILO Convention No. 190 in relation to Articles 26 to 34 of the ILO Constitution, third States can also be empowered now to take up the cudgels against gender-based violence and harassment in traditional and non-traditional work arrangements that occur beyond their own territorial borders, if any ILO Member State is not observing obligations under ILO Convention No. 190. The possibilities for enhanced and deepened victim protection are now so much wider.