By Conway, Mara Eleina
Workforce , Vol. 3, No. 5
NAFTA fosters increasing liability risks in sexual harassment cases.
When the United States, Canada and Mexico enacted the North American Free Trade Agreement (NAFTA) in 1994, it's arguably fair to say the governments couldn't estimate the immense impact the treaty would have on the current bodies of employment law in place. Nor could they have predicted the resulting cultural effects that would impact both individual workers and multinational corporations.
Traditionally, labor and employment laws have been looked upon as domestic issues emanating from the societal need to protect workers, while protecting corporations by defining reciprocal obligations. This is especially true when attempts are made to define what constitutes sexual harassment in the workplace. But with the globalization of corporations and the resulting enactment of international treaties such as NAFTA, labor is no longer solely a domestic issue.
Sexual harassment in the States.
In the United States, sexual harassment is recognized as a type of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964. Laws under Title VII make it illegal for "an employer ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin."
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for regulating and administrating Title VII cases. It has established three situations in which unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature can constitute unlawful sexual harassment:
1) When submission to the conduct is an implied or express condition of employment.
2) When submission to or rejection of the conduct is a basis for favorable or adverse employment decisions regarding the employee.
3) When the conduct interferes with the employee's work performance or creates an intimidating, hostile or offensive working environment.
The EEOC's sex-discrimination guidelines, which don't have the power or effect of law, have nevertheless been adopted by the courts to provide guidance in resolving sexualharassment claims. These guidelines impose strict liability on the employer for unlawful sexual harassment by a supervisor or manager, whether or not the employer was aware of the unlawful acts of his supervisor.
The first two criteria serve as the basis for a quid pro quo sexual harassment claim, and most often occur when the employer's supervisor or manager gives or withholds employment opportunities as a means of coercing sexual favors. The third element is often considered basis for a hostile environment sexual harassment claim and can occur when an employee is exposed to an environment rife with sexual, lewd or profane remarks, body touching, obscene or pornographic photos, or overall offensive conduct. In a typical hostile environment sexualharassment claim, there is no direct link between offensive conduct and a tangible job detriment.
Sexual harassment in Mexico. Since sexual harassment is a criminal offense in Mexico, legal protection is found in the penal code. The law essentially provides protection for people only if their jobs are put in jeopardy in exchange for sexual favors. The penal code basically states that anybody with lascivious intent who entraps a person of any sex because of his or her hierarchical position will face a pecuniary sanction. If the offender is a public employee, he will also be fired.
Punishment under this section is only forthcoming if a petition is filed by the offended party. Compared to the United States, however, few complaints are filed. In the first year the law was effective, just 10 sexual-harassment cases were filed in Mexico City, which has a population of 20 million.
In 1995, a class action Title VII case was brought into a NAFTA suit allow ing Mexican workers to sue a Mexican subsidiary of a U. …