Dear PAO,

I am a new hire in a company. I have been here for about three months and I really want to quit because my immediate supervisor is constantly harassing me. Whenever I am at the copier, she likes to pinch my buttocks. I always tell her to stop, but she insists that she is just teasing me, and will only stop if I have lunch with her. She also said that my job would get easier. I tried filing a complaint with our Human Resource Department but she still did not stop. She pretends to be so nice, yet she is so evil. This makes me extremely uncomfortable. I read somewhere that these actions of my boss could be considered as sexual harassment and a form of constructive dismissal. Is this true?

Danhausen

Dear Danhausen,

You are correct. The actions of your female boss constitute sexual harassment that could be considered as a form of constructive dismissal.

The Honorable Supreme Court, speaking through Honorable Associate Justice Mario Victor F. Leonen, in the case of LBC Express-Vis, Inc. vs. Monica C. Palco (G.R. No. 217101, February 12, 2020), stated that sexual harassment in the workplace could create a hostile or offensive environment that could force an employee to sever employment, leading to constructive dismissal. To wit:

“On the other hand, constructive dismissal has been defined as ‘cessation of work because ‘continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay’ and other benefits.’

“In Penaflor v. Outdoor Clothing Manufacturing Corporation, constructive dismissal has been described as tantamount to ‘involuntarily [sic] resignation due to the harsh, hostile, and unfavorable conditions set by the employer.’ In the same case, it was noted that ‘[t]he gauge for constructive dismissal is whether a reasonable person in the employee’s position would feel compelled to give up his employment under the prevailing circumstances.’

“One of the ways by which a hostile or offensive work environment is created is through the sexual harassment of an employee.

“Workplace sexual harassment occurs when a supervisor, or agent of an employer, or any other person who has authority over another in a work environment, imposes sexual favors on another, which creates in an intimidating, hostile, or offensive environment for the latter.”

Clearly, sexual harassment in the workplace could result in constructive dismissal. As to what is considered sexual harassment, Section 3 of Republic Act (R.A.) No. 7877, otherwise known as the Anti-Sexual Harassment Act, states:

“SECTION 3. Work, Education or Training-related Sexual Harassment Defined. — Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.

“(a) In a work-related or employment environment, sexual harassment is committed when:

“(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;

“(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or

“(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.”

In your case, your female boss is certainly exerting her workplace ascendancy over you whenever she pinches your buttocks and asks you to go out with her, even after repeatedly telling her to stop. If this creates a hostile working environment for you to the point that your continued employment is rendered impossible, then your situation may fall under constructive dismissal. You may file the appropriate complaint with the Department of Labor and Employment and the prosecutor’s office. Please see a lawyer immediately.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]