6 Things We Can Learn About Workplace Sexual Harassment From The Gretchen Fullido Case

It's about time we talked about this all-too-common, yet underreported crime.

It could be a seemingly innocent joke, or a subtle, yet innuendo-laced text message. But whether it's a mild (possibly cringe-worthy) flirtation or an overt sexual proposition, you might have already experienced sexual harassment at work or in school. You might have even committed it yourself, whether you know it or not.

Workplace sexual harassment against both women and men has definitely been going on for a long time. But thanks to the #MeToo movement, more victims of sexual harassment are making their stories heard.  

ABS-CBN anchor Gretchen Fullido, for instance, recently filed a criminal case for sexual harassment against two female executives from the same network. Of course, it's up to the courts to decide whether her alleged harassers should get jail time. But that shouldn't stop us from having a sober conversation about sexual harassment. What if it happens to you? And how do you avoid being a harasser yourself?

Here are six things we can learn about workplace sexual harassment, based on what we know about Gretchen's story so far.

1. Sexual harassment can be verbal. Physical contact is not a necessary element of the crime.

According to Gretchen in her complaint affidavit, ABS-CBN execs Cheryl Favila and Maricar Asprec sent her "text messages that were loaded with sexual innuendos, which amounted to requests for sexual favors." Hence, the complaint for violations of Republic Act 7877 (R.A. 7877), or the "Anti-Sexual Harassment Act of 1995."

The 2002 case of Aquino v. Acosta, also cited in the complaint, breaks down Sec. 3 of R.A. 7877, identifying the three elements of sexual harassment:

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  1. The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another;
  2. The authority, influence, or moral ascendancy exists in a working environment;
  3. The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence or moral ascendancy makes a demand, request, or requirement of a sexual favor.

Simply put, when Person A—who has authority, influence, or moral ascendancy over Person B at work or in school—demands, requests, or requires a sexual favor from Person B, that is sexual harassment. The law doesn't require any physical contact.

2. Sexual harassment isn't merely about sex or flirting. It's about the inherent power imbalance.

Cheryl was a producer at TV Patrol, among other news and current affairs shows. (That is, until she was terminated for serious misconduct through the internal sexual harassment proceedings within ABS-CBN.) Her partner Maricar is a segment producer. According to the complaint affidavit, Gretchen started working for them in 2010 when she started as an anchor for "Star Patrol," TV Patrol's entertainment news segment. Thus, a superior-subordinate work relationship existed between Cheryl and Maricar on one hand, and Gretchen on the other.

Their work relationship is crucial to the complaint. Asking the sexual favor alone isn't exactly the evil that the law seeks to prevent—the relationship between the perpetrator and the victim is also essential. For sexual harassment to be punishable under this law, it has to be committed by a person who has "authority, influence, or moral ascendancy" over the victim. A supervisor against a rank-and-file employee, a president of a corporation against a senior manager, or a regular employee against an intern are a few examples. It doesn't work the other way around or between coworkers of the same rank.

The law doesn't require any physical contact.

This element also means that good intentions or good faith cannot be a defense against allegations of sexual harassment. The fact that the act of harassment was committed within the context of this working relationship makes the act punishable. In the 1994 case of Villarama v. Golden Donuts, the Supreme Court threw some major shade against workplace sexual harassment, even before RA 7877 existed:

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"As a managerial employee, (he) is bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from oversexed superiors."

So, think twice before you even try hitting on that cute intern.  

The working relationship element doesn't mean, however, that you can't do anything about coworkers or even subordinates who make unwanted advances. Depending on the circumstances, you may file an internal complaint based on your employer's code of conduct. A criminal complaint for acts of lasciviousness or unjust vexation under the Revised Penal Code may also be applicable. If it's an ex-boyfriend, ex-husband, or even a former one-night-stand who's doing the harassment, this may be punishable under RA 9262, or the "Anti-Violence Against Women and Their Children (VAWC) Act of 2004." Talk to a lawyer to find out what your options are, depending on your situation.

3. The demand, request, or requirement of the sexual favor need not be explicit. It also does not have to be a condition for a reward or punishment.

According to the complaint, Gretchen's work "never felt the same again" because of Cheryl and Maricar's alleged advances, which resulted in a "hostile and offensive working environment."

The law recognizes two common forms of sexual harassment, similar to sexual harassment laws in other countries: (1) the quid pro quo type and (2) the hostile work environment type. The law also provides for a catch-all scenario: If the act will "impair the employee's rights or privileges under existing labor laws," then such acts can also be considered as sexual harassment.

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In a quid pro quo form of sexual harassment, as provided for in Section 3 (b) (1) of RA 7877, the perpetrator uses the sexual favor as a bargaining chip with the victim in two ways:

On one hand, the sexual favor may be a condition to give the victim certain rights, conditions, and benefits if it is granted. These may include:

  • Hiring, employment, re-employment, or continued employment;
  • Favorable compensation, terms of conditions, promotions, or privileges

On the other hand, it may also be used as a form of blackmail, such that refusal would result to negative consequences to the victim's employment. Specifically, "limiting, segregating, or classifying the employee which in any way would discriminate, deprive, or diminish employment opportunities or otherwise adversely affect said employee."

"It is not essential that the demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender."

In the second form, the hostile work environment type, the act of sexual harassment results in an "intimidating, hostile, or offensive environment for the employee." Unlike the quid pro quo type, it need not be a "Do this for me, and I will do this for your career" or "Do this for me, or you'll get fired/demoted/transferred" scenario.

In the 2008 case of Domingo v. Rayala, which the complaint cited, the Supreme Court interprets Section 3 of RA 7877:

"It is not essential that the demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender."

4. It can happen to anyone and can be committed by anyone, regardless of sex or even sexual orientation, gender identity, or expression (SOGIE).

When Terry Crews came out about being groped by a male Hollywood agent, he surely shattered stereotypes about sexual harassment and assault. Aside from the fact that he's male, he definitely looks like the last person anyone would want to mess with. But it still happened.

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"The assault lasted only minutes, but what he was effectively telling me while he held my genitals in his hand, was that he held the power," Terry said in a Senate Judiciary Committee hearing.

Gretchen's situation may be different, but in the very least, it's comparable to Terry's. She filed a complaint against fellow women.

The law does not limit the definition of sexual harassment to people of the opposite sex or gender. Nowhere in RA 7877 says that it can only be committed against a woman, unlike in other laws like RA 9262 ("Anti-Violence Against Women and Their Children Act of 2004").

5. Save your messages or take screenshots of text messages and online conversations, if you can.

Dozens of pages in Gretchen's complaint, for instance, contains several years' worth of screenshots of text messages.

Proving sexual harassment in a court of law is challenging enough, especially if it's committed verbally or physically. In these situations, it's more likely to turn into a "He said, she said" scenario. But if you have digital records of what you believe may be sketchy behavior, save them. Even if you don't feel comfortable about reporting or suing yet, these will definitely come in handy as evidence, should you wish to file a complaint.

That being said…

6. There is very little incentive for victims to report sexual harassment.

While Gretchen gained a lot of sympathy from netizens for filing a case against her (former) bosses, she still suffered backlash, even during the administrative proceedings within ABS-CBN. 

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Aside from the sexual harassment case, she also filed libel suits against three of her colleagues at ABS-CBN for allegedly issuing statements "with clear intent to besmirch (her) reputation."

The law does not limit the definition of sexual harassment to people of the opposite sex or gender.

Veteran broadcaster Ces Oreña-Drilon's January 22, 2018 affidavit for the ABS-CBN ad hoc committee organized for this case read:

"Gretchen's accusations of sexual harassment against Chair (Favila) and Maricar (Asprec) also surprised me because many times, while I worked as anchor for TV Patrol, I witnessed Ted Failon and Noli De Castro make side comments, in between breaks on TV Patrol, about Gretchen's body, manner of dress, or behavior that, in my opinion, constituted sexual harassment, or at least inappropriate behavior. But Gretchen Fullido only laughed off those comments. She never complained. One remark she made in one party struck me: She said she was willing to wear a bikini with an inflatable pool and bubbles on TV Patrol to shore up its ratings."

Marie Lozano claimed in her affidavit (dated January 19, 2018) that "the first thing that came to mind as the reason why Gretchen filed a complaint is that she wanted to hold on to 'Star Patrol.'"

Venancio Borromeo, meanwhile, said in his affidavit (dated January 22, 2018) that her complaint was "a form of blackmail" because "She knows that… there are so many who could take her place, particularly since she has never produced quality work."

Assuming that the justice system works, whether or not Gretchen is telling the truth about the sexual harassment allegations is up to the courts to settle. But just like a lot of people who complain of sexual harassment or even rape, it's almost automatic that the complainant's motives and morals are also put on trial. This happens even before the actual trial of the accused.

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One must always be presumed innocent until proven guilty. This is a basic principle in criminal law. It's an entirely separate issue, however, when the tables are turned against the victim of an alleged crime when negative accusations are also hurled against them. And this seems to happen more in crimes that are sexual in nature. It's not very common, for example, for a victim of estafa to be told that he shouldn't have trusted anyone. Or for a victim of theft to be told that she usually gives away her stuff to people anyway, which makes the theft, in effect, also okay.  

Because of this culture of victim blaming, those who suffer from crimes sexual in nature would rather not report right away, if at all.

Still, it's not up to us to determine for ourselves whether the accusations are true. But at the very least, know your rights in case you find yourself in the same situation. Talk to someone you trust about it if you're not yet ready to file a complaint. Support victims who come forward, and listen to what they have to say. And if you're someone's boss or mentor, or if you're in any position where you have "authority, influence, or moral ascendancy" over another, know better than to be that person who would put another person in that situation.  

Sources:

Cosmo.ph obtained Gretchen Fullido's complaint affidavit from Atty. Marvin Aceron, her lawyer, on October 8, 2018. These are the official public records received by the Quezon City Prosecutor's Office.

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Aquino v. Acosta, A.M. CTA-01-1, 02 April 2002

Emily Shugerman, "Terry Crews recalls alleged sexual assault by agent in emotional testimony before US senate," June 26, 2018

Republic Act 7877, "Anti-Sexual Harassment Act of 1995"

Republic Act 9262, "Anti-Violence Against Women and Their Children Act of 2004"

Rayala v. Domingo, G.R. No. 155831, 2008

Villarama v. Golden Donuts, G.R. No. 106341, September 2, 1994, 236 SCRA 280

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