Sexual harassment at work: the employer answers

The law separates three situations people tend to blur. One: the employer, its agents or supervisors harass, and there the employer answers without excuses. Two: the harassment occurs between coworkers, and the employer answers if it, its agents or supervisors knew or should have known, unless it proves it took immediate and appropriate action to correct the situation. Three: the harassment comes from non-employees — clients, suppliers, visitors — and the employer answers under the same knowledge standard, considering the scope of its control and any other legal responsibility it has over those persons’ conduct. There is a fourth situation almost nobody knows: when the employer grants employment opportunities or benefits because someone submitted to its sexual advances, it answers to the persons it denied that opportunity or benefit.

Every person who works for an employer and receives compensation for it, and also every job applicant. The law expressly adds that the term employee shall be interpreted as broadly as possible, and includes anyone doing an internship performing work for educational or training purposes, whether or not they receive compensation. Employer includes every natural or juridical person of any kind, the Government of Puerto Rico with its three branches, instrumentalities and public corporations, and municipal governments, for profit or not, plus their agents and supervisors; also labor organizations and employment agencies. Supervisor is every person exercising some control whose recommendation is considered for hiring, classification, dismissal, promotion, transfer, setting compensation, schedule, place or conditions of work, tasks or duties, or any other term or condition of employment, and anyone who day to day performs supervisory tasks.

• That the conduct be an unwanted sexual advance, a request for sexual favors, or other verbal or physical conduct of a sexual nature, including conduct reproduced by electronic means.Verified against the official source
• That at least one of the three circumstances of Article 3 occurs: a condition of employment, the basis for employment decisions, or unreasonable interference with performance or a hostile environment.Verified against the official source
• Filing the cause of action within one year, counted from when the circumstances that could hinder exercising the action end.Verified against the official source

• Your employer’s sexual harassment protocol and its complaint form: the law requires it to exist, and the form must provide space to indicate whether there have been prior complaints.
• A record of what happened: the definition expressly covers conduct reproduced by any means of communication, including electronic means and multimedia tools over the network.

1. 1

   Step 1: Identify which of the three circumstances applies

   Article 3 requires at least one: (a) that submitting to the conduct becomes implicitly or explicitly a term or condition of your employment; (b) that your submission or rejection becomes the basis for employment decisions affecting you; or (c) that the conduct has the effect or purpose of unreasonably interfering with your performance, or creates an intimidating, hostile or offensive work environment. The determination considers the totality of the circumstances in which the facts occurred, case by case.

2. 2

   Step 2: Know who answers before you claim

   This is the law’s key difference. For acts of its agents or supervisors, the employer answers regardless of whether those specific acts were authorized or prohibited by it, and regardless of whether it knew or should have known. There is no need to establish that the agent or supervisor directly supervised you. By contrast, for acts between coworkers, or by non-employees, the employer answers only if it knew or should have known and did not take immediate and appropriate action to correct the situation.

3. 3

   Step 3: Ask for the protocol and the complaint form

   Since Act 82-2022, promulgating and implementing a Protocol to Handle Sexual Harassment Situations in workplaces is required. The employer may adopt the model protocol and complaint form designed by DTRH, or implement its own provided they equal or exceed the state guide’s minimum standards. That protocol must include, among other things: who may file and the procedure, with the option of a verbal, written or anonymous complaint; confidentiality measures; provisional protective measures for complainants or victims; an express provision on the illegality of retaliation; and other available forums, with instructions on how to contact them. If your employer has more than five employees, the protocol must name the person or persons to whom complaints are submitted and give their contact information.

4. 4

   Step 4: You do not have to exhaust administrative remedies

   Article 13 says it plainly: for purposes of initiating judicial proceedings under this law it shall not be necessary to exhaust administrative remedies. It is a real difference from other labor laws, and it means the judicial route is open without waiting for an agency to decide first.

5. 5

   Step 5: Count the year from when the circumstances hindering you end

   The term to file a cause of action is one year, and the law specifies the starting point in a way that matters: the prescriptive term in sexual harassment at work actions must begin to run when the circumstances that could hinder exercising the action end. It is not necessarily the date of the last incident.

6. 6

   Step 6: Claim what the law sets

   Every responsible person incurs civil liability for a sum equal to double the amount of the damages caused to the employee or applicant; or for a sum of no less than ten thousand dollars ($10,000) at the court’s discretion when pecuniary damages cannot be determined. In its judgment the court may also order the employer to hire, promote or reinstate you and to cease and desist from the act. And the responsible party must pay the attorney’s fees and costs of the proceeding the court sets.

Start with your employer’s internal procedure, which the law requires it to have and make effective. The Anti-Discrimination Unit of the Department of Labor and Human Resources handles employment discrimination complaints, and the Office of the Women’s Advocate also receives claims and provides technical guidance alongside DTRH for these protocols. The law also names the Equal Employment Opportunity Commission among the forums the protocol must list for the employee. And the judicial route is open without exhausting administrative remedies. If you work in government, Article 17 provides that when the complaint is filed in an agency, public corporation or instrumentality, the investigation will be carried out by another government entity, assigned by OATRH.

• Believing the employer escapes by saying it did not know: for acts of its agents or supervisors it answers even if it did not.
• Thinking administrative remedies must be exhausted before going to court: Article 13 says no.
• Counting the year from the last incident instead of from when the circumstances hindering the action end.
• Dismissing conduct over WhatsApp or social media: the definition expressly covers electronic means.
• Believing it does not cover interns or people not yet hired: the law covers job applicants and internships.
• Not requesting the employer’s protocol, mandatory since 2022 and required to include an anonymous complaint option.
• Not claiming the $10,000 floor when pecuniary damages cannot be determined.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  bvirtualogp.pr.gov

• Anti-Discrimination Unit — DTRH

  DTRH

  www.trabajo.pr.gov

• Department of Labor and Human Resources

  DTRH

  www.trabajo.pr.gov

• Office of the Women’s Advocate

  OPM

  www.mujer.pr.gov