Despite the fact that harassment was previously an issue poorly managed by local companies, current practice in Russia demonstrates the increasing public profile of cases of sexual harassment at work. The heightened attention to this problem has been dictated by both the increased popularity of the #MeToo movement and the adoption of the ILO Violence and Harassment Convention. Although the topic of sexual harassment is imprecisely regulated by Russian law and mainly discussed in the context of criminal liability, there is an increasing trend for companies to establish internationally recognised best practice for preventing any kind of discrimination, including any form of harassment. The most practical way is the adoption of internal policies imposing zero tolerance for harassment, as well as for discriminatory and retaliatory behaviour at work.
Russian law does not provide for the legal definition of harassment. One of the terms existing in Russian legislation is ‘coercion into acts of a sexual character’, which is a criminal offence. Acts described as ‘violent acts of a sexual character’ are also criminal offences under Russian legislation.
However, workplace harassment is not limited to the extreme forms of harassment covered by the criminal law. Harassment also includes, for example, inappropriate jokes, unnecessary gestures, photos, videos, unwanted touches, offensive comments, and more.
According to publicly available information (source: a survey by Vedomosti and the analytical company Online Market Intelligence), 13% of women do not consider violence to be harassment and are ready to put up with it, 25% consider harassment at work to be a personal matter between individuals.
7% of men and 16% of women have experienced sexual harassment at least once in their careers. Of these, almost half of the employees faced with harassment (47.2%) did nothing. Another 16.8% of respondents settled the incident themselves (complained to their relatives, slapped the offender, began to avoid him or her, etc.). 17.2% of the victims voluntarily terminated the employment relationship, and only 2.6% of victims applied to law enforcement agencies.
The above statistics and daily practice show that as of now the most effective way to regulate issues relating to workplace harassment is local regulation. Internal policies can be based on the ILO Violence and Harassment Convention (which defines the term and establishes new standards), and the corresponding ILO Recommendation, despite the fact that Russia has not joined the Convention yet.
Workplace sexual harassment cases rarely go to court in Russia, which may be explained by the lack of proper legal regulation, an unambiguous understanding of the issue (e.g. what is harassment, how should it be dealt with) or victims’ fear. However, over the past few months, more and more stories have been brought to the light in social media. The cases reveal different types of workplace harassment, including both emotional and physical abuse. In each particular case the targeted group of employees suffering from harassment also varied: there are women, immigrants, people with disabilities etc.
In the majority of cases related to sexual harassment, these stories end with no consequences for the abuser. In some cases, employment relations with these employees are terminated, but based on employees’ own initiative or by mutual consent between them and the employer. The point is that it is almost never the case that the situation ends in dismissal due to misconduct. This is mostly because companies do not know how to deal with these types of allegations: on the one hand, the law does not establish the internal investigation procedure and appropriate types of actions to be taken, on the other hand, companies do not have their own internal procedure established by local policies.
Examples from case law
Although legal actions about harassment at the workplace are still very rare and experience limited success, there are some cases where these issues have been considered by the courts. One of the most notable harassment cases in recent years was a legal action, when a woman filed a claim for illegal dismissal in March 2018. The reason for filing the claim was obsessive harassment by her former supervisor.
The woman demanded compensation for moral damage and compensation for earnings during the period of forced unemployment. Formally, she was dismissed on the grounds she had not passed the probationary period, but in fact, the dismissal was directly related to harassment. In the district court, the employee’s claim was denied due to the expiration of the limitation period (after her dismissal, she was treated by psychologists for seven months) (Oktyabrsky District Court of Murmansk, case No. 2-1685 / 2018 ~ M-909/2018). The Supreme Court decided to reconsider the case (Ruling of the Supreme Court of the Russian Federation of July 29, 2019 in case No. 34-KG19-3). However, the ruling of the Supreme Court did not contain a word about harassment, only about unjustified dismissal. In December 2019, the regional court upheld the decision at first instance and did not accept the claim (Oktyabrsky District Court of Murmansk, case No. 2-5949/2019). One of the reasons given for that was the absence of criminal charges.
This case is important as it drew attention to the issue of harassment and also demonstrates the problems created by a lack of legal and internal regulations of harassment in the workplace.
What protection from harassment is available under Russian law?
Given that the law is silent on this issue, the ball is in the employer’s court. Russian law provides that organisations are free to elaborate their own internal local regulation. The only strict requirement is that this local regulation should not affect employees’ rights and protection and should not worsen their legal status under statute. Taking into account the available legal possibilities, local regulation should be developed in such a way that it would be possible to use it to refer to existing legal procedures, for example, subjecting an abuser to disciplinary liability, which in some cases may end up in dismissal.
For example, one of the most effective way for an employer to prevent sexual or any other harassment is to adopt or amend an existing disciplinary policy with provisions prohibiting harassment and clear indications of what actions are considered harassment. The policy may set up anti-harassment procedures and training programmes for employees, a procedure for conducting investigations and suspending employees from work during it, etc.
This local regulation can also be supplemented by related hotlines, whistleblowing regulations, and monitoring measures.
A global policy at inter–group level is not enough for proper protection. The policy must be ‘localised’ according to the Russian legislation in order to be binding on both employees and the organisation. The process of ‘localisation’ means, inter alia, translation into Russian, adoption as a local policy of the Russian organisation according to its internal rules and official familiarisation of all employees with the local policy, evidenced by obtaining their signatures.