Implications of the Organic Act on Sexual Freedom in the Workplace

Organic Act 10/2022, of September 6, on the comprehensive guarantee of sexual freedom, came into force on October 7. It seeks the adoption and implementation of effective, global and coordinated policies to ensure awareness, prevention and detection, as well as the sanctioning and comprehensive protection against all forms of sexual violence.

Regarding its impact in the workplace, the Act imposes significant obligations on companies while encouraging them to review and update other existing measures. In particular:

• The publication of Organic Act 10/2022 reinforces the importance of reviewing corporate sexual harassment and gender-based protocols.
  
  Among other things, this preventive measure may serve to avoid corporate criminal liability for sexual harassment or crimes against moral integrity in the workplace (including for lack of supervision under article 31 bis (1)(b) of the Spanish Criminal Code).

• Companies must consider sexual violence in the design and development of internal reporting channels. This is particularly relevant in view of the imminent approval of the Act on the protection of persons who report regulatory infringements and the fight against corruption, transposing Directive (EU) 2019/1937 (“Whistleblowing Directive”).

• Equality plans should be negotiated with employee representatives, including codes of good practice, action plans, training and awareness programs, as well as potential improvements in legally recognized rights of victims. Companies can thus further advance ESG principles by implementing diversity plans.

• Finally, in the framework of occupational risk prevention, companies should review risk assessment systems in the workplace from the perspective of sexual violence.

Based on ESG principles, Organic Act 10/2022 focuses on (i) the respect, protection and guarantee of human and fundamental rights; (ii) due diligence; and (iii) gender perspective and prohibition of discrimination.

More specifically, in line with the above obligations, this new Act provides for the following prevention and awareness measures, including the following corporate duties:

1. To promote working conditions that prevent crimes and other offences against sexual freedom and moral integrity at work (with special emphasis on sexual harassment and harassment based on sex).
   
   
2. To establish sexual violence prevention procedures and internal reporting channels.
   
   
3. To draw up and disseminate codes of good practice, information campaigns, action plans, and training and awareness programs, negotiated with employee representatives.
   
   
4. To include sexual violence in the occupational risk assessment for different positions.

Likewise, Organic Act 10/2022 (i) extends the rights of workers considered victims of sexual violence and places them on an equal footing with victims of gender-based violence for the purposes, among others, of reducing or adapting working hours, geographic mobility, and interpreting absences or lack of punctuality; and (ii) provides for a 100% reduction in employers’ social security contributions for common contingencies for companies that hire unemployed persons under temporary contracts to replace workers who are victims of sexual violence.

In conclusion, the new Organic Act on sexual freedom requires companies to review their existing measures and opens the door to implementing new equality policies to build more sustainable organizations.