The ILO Resolution on Workplace Sexual Harassment: Old Wine in a New Bottle?
By Kirthi Jayakumar
The International Labour Organization adopted what has been heralded as a historic convention addressing the reduction of violence and harassment in the workplace with an overwhelming majority. Adopted 439-7 with 30 abstentions, the resolution came into force four years after the discussions around it were initiated. According to the ILO Director-General Guy Ryder, the #MeToo movement had lent the discussions “momentum and significance” to adopt the convention.
The convention is a first at the global level to address violence and harassment at work. It aims at protecting workers from harassment in places where they are paid or resting, eating, or using sanitary facilities, regardless of their contractual status – thus including those whose employment has been terminated and job seekers. It covers work-related trips and commutes, training programs, social activities, and communications. It addresses workers from the public and the private sectors and the unorganized sector (informal economy) as well. The convention also accounts for violence and harassment involving clients, customers, service providers, and other third parties.
Per the convention, governments that opt to ratify will be required to come up with national legislative measures to prohibit workplace violence, engage in preventive measures, and draft workplace policies to address violence in the workplace. Governments will be mandated to monitor the prevalence of workplace harassment and provide access to remedies through complaint mechanisms, provide witness protection measures and victim support services, while also prioritizing protection for victims and whistleblowers from retaliatory reprisals.
Ignoring structural violence
The text of the convention defines violence and harassment as “a range of unacceptable behaviors 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.” Within this definitive scope, one can see that the convention specifically targets direct violence, or violence that is manifest and overt. Johan Galtung’s (1969) famous triangle explains that direct violence as a manifestation of the underlying structural and cultural violence that remain hidden.
Workplace violence and sexual harassment that is overt is largely a product of power structures and involve power play. Both hostile environment harassment (harassment without any reciprocal “benefits and favours”) and quid pro quo harassment (providing “benefits” or “favours” in return for sexual favours) are a product of a person in power manipulating their position of power to take advantage of an employee / worker’s vulnerabilities or lack of power. The convention’s explicit reference to behaviours, practices, and threats speaks exclusively to the symptom and not to the structures that need to be addressed at its very base.
Workplaces of all kinds are traditionally cis-het male-dominated spaces, and almost all other gender identities have been excluded systemically. As Otto (2010) argues, “In the absence of change in the broader social hierarchies of gender, women need to cross to the “male” side of gendered traditions if they are to be taken seriously in traditionally male spheres.” What Otto suggests as true of women is just as true for all non-cis-het male identities accessing workplaces. To overcome these barriers, the key is to focus on “substantive equality” (Otto, 2010) that dismantles structural violence. The ILO appears to prioritize an “integrated, inclusive, and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work,” but it appears to be another document among many that appear to have dissociated political content from the substance of feminist engagement for the sake of institutionalization (Baden and Goetz, 1998).
Strategic Essentialism over Inclusive Engagement
Article 6 of the Convention says, “Each Member shall adopt laws, regulations and policies ensuring the right to equality and non-discrimination in employment and occupation, including for women workers, as well as for workers and other persons belonging to one or more vulnerable groups or groups in situations of vulnerability that are disproportionately affected by violence and harassment in the world of work.”
Though the convention appears to leave room for a wide interpretation of the idea of who a worker is within the scope of the text and its implications, its generic and loose terminology begs the question as to whose interests are accommodated within the term, and whose interests can be interpreted out of the scope of the provision. Spivak (1988) explained how minority groups, nationalities, or ethnic groups mobilize on the basis of shared gendered, cultural, or political identity to represent themselves towards attaining a particular target. However, as Aroussi (2017) explained, even as strategic essentialism can help assert group rights or may succeed in attaining a particular goal, it can also “represent a slippery slope that limits what can be achieved,” in this case, by this convention.
The convention does not, however, address the harassment and violence against LGBTQIA+ people. In response to a question pointing this lacuna out, ILO Director-General Guy Ryder acknowledged that LGBTQIA+ issues were “controversial” but said that “The spirit of the Convention … is that everybody falls under the protection of this Convention.” From Guy Ryder’s statement, it appears that there were “contentious negotiations on the convention” in the run up to its adoption, and that defining the scope of “vulnerable groups” was a “major stumbling block.” This only confirms the fact that approaches to push for the convention were couched in strategic essentialism, rather than in actual inclusive agendas that acknowledge the variations in gender experiences on account of multiple other identities.
The wide language leaves room for interpretative frameworks that can be altered to suit particular agendas. That the convention’s implementations are left to nations and their legal frameworks, the wide amplitude offered by the language allows states to import national structures into their legal frameworks. This means that countries that have structures that discriminate against groups that are vulnerable by basic human rights standards, will import such structures into national legislation in pursuit of the convention.
A wasted opportunity?
The ILO’s attempt at this convention comes closely at its heels of recognizing the gaps in extant national legal regimes addressing workplace violence and harassment. Any attempt at legislation for workplace harassment must acknowledge the forms of structural and cultural violence that cause it. Admittedly, it cannot be discounted that this convention is a path-breaking development in shaking up the silence around workplace harassment at the global level. However, the true success of this convention lies not in its creation and adoption today – but will be achieved only if the agenda it professes is furthered with a dedicated pursuit of dismantling structures and cultural factors that enable workplace harassment.
Image Source: ILO / Flickr
References
Galtung, Johan (1969) ‘Violence, Peace, and Peace Research’. Journal of Peace Research 6(3): 167-191
Otto, Dianne (2010), ‘Power and Danger: Feminist Engagement with International Law Through the UN Security Council’. Australian Feminist Law Journal, 32(2010): 97-121.
Baden Sally and Goetz Anne Marie ‘Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing’ in Jackson Cecile and Pearson Ruth (eds) Feminist Visions of Development: Gender Analysis and Policy Routledge Oxfordshire 1998 p 19 at 24–5.
Spivak, G. C. (1988) ‘Can the Subaltern Speak?’ In Marxism and the Interpretation of Culture, eds. Cary Nelson and Larry Grossberg. Urbana: University of Illinois Press, pp. 271–313
Aroussi, S. (2017). ‘National Action Plans on Women, Peace, and Security as Tools of Foreign Policy: Reconsidering Gender Security in the West’ In Sahla Aroussi (ed) Rethinking National Action Plans on Women, Peace, and Security, IOS Press. pp. 29-41.
Daily Sabah (2019, June). UN Labor Agency ILO Adopts Landmark Anti-Harassment Convention During Centennial Assembly (Link)
ILO (2019), Convention Concerning the Elimination of Violence and Harassment in the World of Work (Link)
Human Rights Watch (2019) ILO: New Treaty to Protect Workers from Violence, Harassment. (Link)