Sexual harassment is something that, in the olden days, everyone knew existed but dare not speak about. Victims are then left too often to suffer alone and in silence. Who could blame them after all? Before, when one speaks up against sexual harassment, they end up being ridiculed, thought of as a liar, or worse, subjected to further harassment. Not anymore. In recent years, more and more victims conjured the courage to speak up; to say that it’s not okay; that they deserve justice. Thankfully, society and the government are finally listening, not with judgment but with compassion and empathy.

In the Philippines, sexual harassment is penalized as a crime in Republic Act No. 7877 or the Anti-Sexual Harassment Law of 1995. It defines sexual harassment in the context of work, education, or training environment. Section 3 of R.A. No. 7877 provides that “[w]ork, 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.”

The law also provides that “in a work-related or employment environment, sexual  harassment is committed when:

• 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 of 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;
• The above acts would impair the employee's rights or  privileges under existing labor laws; or
• The above acts would result in an intimidating, hostile,  or offensive environment for the employee.

On the other hand “In an education or training environment, sexual harassment is committed:      

• Against one who is under the care, custody or supervision of the offender;  
• Against one whose education, training, apprenticeship  or tutorship is entrusted to the offender;
• When the sexual favor is made a condition to the giving  of a passing grade, or the granting of honors and scholarships,  or the payment of a stipend, allowance or other benefits,  privileges, or consideration; or
• When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or  apprentice.”

As we can see there are a lot of ways to commit sexual harassment whether in the workplace or in an education or training institution. To illustrate let us look into Supreme Court decisions regarding sexual harassment.

First, we have the case of Presidential Broadcast Staff-Radio Television Malacañang (PBS-RTVM) Vs. Vergel P. Tabasa (G.R. No. 234624, 26 February 2020.). This case involves a senior cameraman working for the PBS-RTVM and a contractual employee working there as well. One day in December 2012, while the contractual employee was seated on a sofa in their office and watching a noontime show, the cameraman seated beside her and cornered her. The cameraman proceeded to tickled the knee of the contractual employee much to the shock and humiliation of the latter. The contractual employee protested but the cameraman held her. This caused the contractual employee to forcibly free herself from the cameraman and hitting her elbow in a nearby cabinet in the process. She proceeded to the toilet to cry.

Thereafter, the contractual employee returned to their office. There the cameraman, instead of apologizing for what he did, actually taunted her when he said “Oh, umiyak ka daw.” The contractual employee then left the office.

Unsurprisingly, a complaint was filed against the cameraman by the contractual employee together with two other complainants. During the administrative hearing, the cameraman admitted to touching the knee of the contractual employee but insisted that he was just joking. Also, the cameraman claims that the simultaneous filing of complaints against him by the three complainants was proof of a concerted effort to harass and inconvenience him. Nevertheless, the cameraman was found guilty of simple misconduct and was dismissed from service.

Of course, the cameraman appealed the case until it reached the Supreme Court. The cameraman maintained all throughout that he was merely joking around with the contractual employee. This forced the Supreme Court to make a distinction between playful teasing and hurtful teasing. The Supreme Court said: “it is important to stress that there is playful teasing and then there is hurtful teasing. Despite teasing’s positive effects to interpersonal relationships, it may not always be perceived favorably. The way a person views a joke may differ depending on the situation and on how one perceives a tease – a teaser’s intentions and his/her overall interaction with the teaser. Insensitive jokes or actions could border on harassment, due to the fact that targets may be unaware of the teaser’s intentions.”

The Supreme Court then explained that the actions of the cameraman may well be just a joke to him but it was inappropriate and seen as harassment from the point of view of the recipient. The Court continued that the touching of the knee was clearly unsolicited and uncalled for. The Court admonished the cameraman when it said, “[e]ven if the act was done without malice, it is beyond all bounds of decency and decorum for a person to touch any body part another without the consent for that matter.”

The Supreme Court however, clarified that their decision should not mean that joking is prohibited in the workplace. It held, “[t]his is not to completely prohibit light-hearted banter for no one would want to create a sterile working environment. Creating an atmosphere of playfulness in the workplace is an understandable form of social interaction. The Court takes judicial notice that humor in the workplace could positively leverage work-related outcomes such as work productivity, staff motivation, job satisfaction, group cohesion, commitment, and most importantly, stress reduction. However, unsolicited physical contact, even if done in jest, has not place in the workplace, especially in the government service.”

So, we’re clear. Unsolicited physical contact, even when done jokingly is not allowed. At least we can still crack joke. Uhm…..not necessarily. We still need to be careful with the jokes we crack. Let us look at the example of a law professor who was suspended from the practice of law because of a green joke he said to his class. This is the case of Re: Anonymous complaint against Atty. Cresencion P. Co Untian, Jr. (A.C. No. 5900, 10 April 2019.).

Atty. Co Untian is a professor of law in a university in Mindanao. A number of complaints for sexual harassment were filed against him by a number of his students. One complaint alleged that during a recitation of the complainant during her class with Atty. Co Untian, the complainant clarified a question by saying, “Sir, come again?”. Atty. Co Untian then responded by saying “What? You want me to come again? I have not come the first time and don’t you know that it took me five minutes to come and you want me to come again?” The complainant later learned that Atty. Co Untian narrated the incident to almost all his classes causing her embarrassment.

Atty. Co Untian in his defense claimed that the complainant was disrespectful when she was called to recite and said “come again?”. Atty. Co Untian claimed that he wanted to inject humor into the class when he said “Never use slang language in my class you might be misinterpreted. What do you mean by ‘come again?’ It takes me several minutes before I come again.” Atty. Co Unitan further claimed that the joke was intended for himself and that in fact the complainant laughed at the joke.

The Supreme Court did not take the side of Atty. Co Untian. It held that Atty. Co Untian’s joke “cannot be categorized as an innocent joke only meant to lighten the mood of the class. xxx It Is readily apparent that the remark is tasteless, vulgar and crude and has no place in any academic setting. It is not a clever word play or a mere statement with sexual innuendos as its intended meaning is obviously discernable. Respondent’s attempt at humor miserably fails as his words clearly refer to him needing five minutes to ejaculate against. Respondent’s statements made [complainant] uncomfortable and embarrassed in front of her classmates as it went beyond an innocent joke and was instead a gross, graphic and an insensitive remark.”

So, no. We cannot take the jokes we crack lightly. Bear in mind that it is not the intention behind the act of the joke that is controlling here. What is controlling is the reaction to it or the perception of their meaning. Especially in the workplace or the classroom, more often than not, people would not show that they took offense to a joke or remark. On the contrary, mostly people play along so as not to be branded as KJ or ridiculed further. But deep inside they really felt embarrassed, offended, appalled.

As a final note, while the examples here provided are between a man and a woman, there is nothing in the law that limits the commission of sexual harassment to a man against a woman. It can be committed in all permutations. A man against a woman; a woman against a man; a man against a man; a woman against a woman. It is not a crime which exclusively be committed by a man. As defined, it is a crime that can be committed by anyone.

Disclaimer: The information presented in this article is for informational purposes only. It should not be taken as a legal advice or be used a basis for legal action or defense.