The need to adopt a legal framework to tackle harassment in the workplace in Lebanon has been garnering more space in the public debate during the last couple of months, especially after the success of the almost global #MeToo campaign. In fact, many in the labor sector—especially women and transgender persons, who are verbally or sexually harassed by a colleague or manger, once they gather enough courage to speak-out—often find themselves unable to file a lawsuit against the perpetrator. Instead, they are trapped in a disheartening legal vacuum given the absence of a proper legal framework to fight harassment on one hand and given existing rigid legal imperatives on the other that notably require the victim proves harassment actually occurred. Yes, allegations must be proven, and the alleged perpetrator remains “innocent until proven guilty,” social peace requires it. However, harassment is not assault, and its existence is often contingent on the victim’s perception of the facts. Therefore, an objective serch for the truth is not necessarily compatible with fighting harassment, especially when power-dynamics and patriarchal culture are factored-in. It is precisely for this reason that there is a pressing need to adopt a comprehensive legal framework in the country.
Today, there are at least three different draft laws on sexual harassment that are being proposed in Lebanon. The first one was submitted to Parliament in 2017 by former MP Ghassan Moukheiber and was adopted for less than five minutes before being immediately retracted given the opposition of some MPs, who voiced fears the law would lead to blackmail and vengeful acts against employers. The second law was submitted during the mandate of Jean Oghassabian as Minister of State for Women’s Affairs and adopted by the Council of Ministers on March 8, 2017. In a previous critical review of both draft laws, I had pinpointed many of their problematic issues which may, in fact, counteract the goals they had set, mainly:
The Oghassabian draft law adopts a definition of harassment that recognizes vertical ascendant harassment (meaning that employers can allege being harassed by their employees and sue them on that basis). This recognition is not compatible with the type of hierarchical work-relationships that exist in Lebanon and was only noted in a few rare examples in comparative law within societies where work-relations are of a more cooperative nature. This can, in fact, lead employers to counter-sue employees who claim they are being harassed at work.
On the other hand, both draft laws use an affirmative phrasing in their definition of harassment, meaning that the victim must not only prove the facts but also the damage—such as psychological stress—incurred, which greatly limits the possibility of ever filing a lawsuit in that regard given the complexities of harassment cases in terms of proving damage.
Both draft laws also rely on criminal justice to resolve sexual harassment claims. This may have a deterrent effect on victims given the very public and repressive nature of criminal justice. The aim of legislators should not be limited to compensating victims, but should also ensure the sustainability of their jobs. In that regard a criminal lawsuit against the employer is problematic.
In 2012, I participated—along with various lawyers, researchers, feminist activists, judges, and union members—in writing a comprehensive draft law on sexual and moral harassment at the workplace and outside of it within the “Adventures of Salwa” project undertaken by Nasawiya, a feminist collective NGO. This draft law was written after months of research. Its definition of harassment reduces the burden of the proof on the victims, opens the option to resort to civil courts, safeguards jobs, and establishes an obligation on employers to protect their employees from harassment and find an internal mechanism of complaint and investigation to deal with harassment allegations. The draft law was submitted to the National Commission for Lebanese Women in 2018.
Meanwhile, given the legal vacuum that exists, there are certain loopholes victims of harassment can use in the Labor Code to file a complaint. Indeed article 75 of the Code states that an employee is entitled to quit their job and get paid “dismissal compensation” if the employer or their representative commits an act of violence against them. Since the early 1950s, Lebanese courts have interpreted such acts to include verbal acts of violence (harassment may be considered one of them). It is within that framework and given the current legal situation that we at the Legal Agenda have decided to draft a model defense specifically dedicated to victims of harassment at work. The model defense shall be published within the next couple of months and disseminated for free on our online platform legal-agenda.com.