INTRODUCTION
A. The Evolutionary Concept of Sexual Harassment
In recent years, sexual harassment in the workplace has increasingly been recognized as both a legal and social issue with direct impacts on the dignity, rights, and lawful interests of workers. However, in practice, the identification and handling of sexual harassment remain problematic due to the lack of a unified understanding and a clearly defined conceptual scope. Therefore, clarifying the concept of sexual harassment in the workplace plays an essential role in providing a foundation for legal research and the effective application of labor law.
First, sexual harassment may be briefly understood as a form of sex discrimination under the Federal Act on Gender Equality (GEA)1. According to the definition provided by the Federal Office for Gender Equality (FOGE), sexual harassment in the workplace refers to any conduct of a sexual nature or related to a person’s sex that is not accepted by one party and violates the dignity of the person concerned2. The subjective perception of the victim, rather than the intention of the alleged harasser. Sexual harassment may take the form of words, images, gestures, or actions.
Traditional legal approaches, most notably those advanced by Catharine A. MacKinnon, have traditionally classified sexual harassment in the workplace into two main forms: quid pro quo harassment and hostile work environment harassment3. However, contemporary scholarship has gradually shifted the focus of analysis by emphasizing that most acts of sexual harassment are not primarily aimed at initiating or coercing sexual relations. Instead, such conduct often functions as a mechanism for maintaining gender-based power, undermining personal dignity, or excluding victims from professional opportunities4. At the same time, the scope of potential perpetrators has been significantly expanded. Sexual harassment is no longer understood as occurring solely within hierarchical relationships between supervisors and subordinates, but also includes conduct by co-workers, clients, business partners, or other third parties who are able to exert a substantial influence on an employee’s working conditions5.
Notably, the rapid development of deepfake technology has created new challenges in identifying and addressing sexual harassment in the labor context6. Sexually explicit images, videos, or audio recordings generated or manipulated by artificial intelligence with a high degree of realism may be misused as tools for intimidation, blackmail, retaliation, or reputational harm against workers. In response to this phenomenon, a growing body of research has adopted the term technology-facilitated sexual harassment (TFSH) to highlight an emerging form of sexual violence closely linked to the expansion of the Internet and digital platforms. Furthermore, the rise of non-traditional working arrangements, such as the gig economy7 and remote work, has exposed significant gaps in existing protection mechanisms against work-related sexual harassment. These gaps are particularly evident where workers fall outside the scope of traditional employment relationships as defined under current legal frameworks. This reality calls for a broader understanding of the concept of the “workplace,” one that is connected to the spaces and contexts in which work-related activities occur, rather than being limited to a fixed physical location.
From the approaches discussed above, it can be observed that, despite certain differences in legislative techniques and regulatory scope, legal systems and legal doctrines largely converge on several core elements of sexual harassment in the workplace. These elements include: (i) the sexual or gender-related nature of the conduct; (ii) the “unwelcome” character of the conduct, which is determined primarily based on the perception of the affected person; and (iii) the actual or potential impact on the victim’s dignity, reputation, equality, and working conditions. At the same time, the development of contemporary legal theory has broadened the understanding of the nature of sexual harassment. It is no longer confined to situations involving the exchange of sexual favors or the creation of a hostile working environment, but is increasingly recognized as a mechanism for maintaining power imbalances and facilitating occupational exclusion. Accordingly, the scope of potential perpetrators is no longer limited to hierarchical relationships between supervisors and subordinates, but extends to any individual capable of exerting a significant influence on the working environment and employment conditions, including through digital spaces or non-traditional forms of work.
On this basis, sexual harassment in the workplace may be defined as any conduct of a sexual or gender-related nature, carried out through words, actions, images, data, or technological means, which is unwelcome to the affected person and has the purpose or effect of violating their dignity, reputation, or equality, or undermining their right to a safe and equal working environment, in the context of work-related activities, regardless of the physical location or the specific form of the employment relationship.
Accordingly, sexual harassment in the workplace should not be regarded merely as an isolated legal violation, but rather as a manifestation of structural gender inequalities embedded within organizations and society at large. The ongoing evolution of this concept in response to theoretical developments and technological change underscores the need for the continued refinement of the legal framework in order to ensure a safe, respectful, and gender-equal working environment.
B. Characteristics of Sexual Harassment in the Workplace
From a substantive perspective, sexual harassment in the workplace does not merely consist of conduct with sexual content, but rather functions as a mechanism through which power is exercised and maintained within the labor environment. Accordingly, an analysis of the characteristics of this conduct must be situated within the broader context of employment relationships, workplace dynamics, and structural gender inequality, rather than being viewed solely as isolated acts of individual misconduct.
First, a fundamental characteristic of sexual harassment in the workplace is its close connection to employment relationships and power asymmetry. The workplace is not merely a space where work activities take place, but also a setting shaped by various forms of dependency: employees depend on employers, subordinates depend on supervisors, interns depend on mentors, and freelance workers may depend on clients. It is precisely the existence of these power imbalances that creates conditions in which unwelcome sexual advances or suggestions are more likely to occur, rather than arising between individuals of equal professional status. In such contexts, the perpetrator may exploit their authority over performance evaluation, work assignment, or access to professional opportunities in order to exert control or pressure over the other party. As a result, conduct that may appear to be “jokes” or informal remarks can, in reality, function as tools that cause the victim to feel pressured, fearful, or compelled to tolerate such behavior as a means of protecting their employment position. This characteristic demonstrates that sexual harassment in the workplace cannot be separated from organizational structures and hierarchical power relations within the labor environment.
Second, sexual harassment in the workplace is characterized by the diversity and complexity of its forms of manifestation. This conduct has extended beyond direct physical violations such as unwanted touching, hugging, kissing, or coerced sexual relations, and also encompasses verbal statements, gestures, insinuations, the sending of images, the sharing of pornographic content, comments on another person’s body, appearance, clothing, or sexual life, as well as sexually suggestive teasing during meetings, company events, or even through work-related emails, text messages, internal chat groups, and online working platforms8. Particularly in the era of digitalization and the expansion of online working environments, sexual harassment no longer occurs solely within the traditional office space, but may take place through electronic devices and virtual meeting platforms, where the boundary between the “professional working environment” and private life becomes increasingly blurred9. A crucial feature of such conduct when it occurs in digital spaces is its rapid dissemination and prolonged consequences. This makes the processes of identification, detection, and classification more challenging, as behaviors that are often minimized under the labels of “jokes” or “collegial intimacy” may in fact constitute serious sources of harm to the affected person.
Third, sexual harassment in the workplace involves a serious violation of personal dignity and contributes to the creation of a hostile and unsafe working environment. Unlike ordinary professional disagreements, sexual harassment directly targets fundamental human values such as bodily integrity, gender identity, self-respect, and the right to personal autonomy over one’s body. As a consequence, victims may experience feelings of shame, humiliation, and self-doubt, gradually losing trust in their colleagues and in the broader workplace environment. Where such conduct occurs repeatedly or systematically, particularly when carried out by multiple individuals, it may give rise to what is commonly referred to as a “hostile work environment,” in which the affected person remains in a constant state of vigilance, fear, and psychological stress, thereby impairing their ability to concentrate, perform effectively, and exercise professional creativity10. From an organizational perspective, this phenomenon may result in reduced productivity, increased employee turnover, weakened internal cohesion, and long-term damage to corporate culture.
Finally, a core characteristic of sexual harassment in the workplace lies in its roots in systemic gender inequality. From the perspective of feminist legal theory, sexual harassment is not merely a series of isolated acts of individual misconduct, but rather forms part of what has been described as “sexual politics,” where gender and power intersect, and where women and other vulnerable groups often occupy structurally disadvantaged positions11. When sexuality is transformed into a tool by those in dominant positions to assert status and exercise control, sexual harassment becomes a mechanism for preserving unequal social and organizational hierarchies. In this context, the conduct conveys a symbolic message that the victim is not recognized primarily as a professional subject, but instead reduced to a sexualized object. Conversely, silence or tolerance on the part of the organization further reinforces this message and enables the reproduction of structural inequality within the workplace on a daily basis.
Accordingly, from a theoretical perspective, sexual harassment in the workplace should be understood as a structural phenomenon, rather than merely an individual or incidental occurrence. Its defining characteristics are shaped by: its close connection to employment relationships and power dynamics; its diverse, evolving, and increasingly sophisticated manifestations, particularly within digital spaces; its serious violation of personal dignity and the integrity of the working environment; its far-reaching yet often difficult-to-detect consequences; and its roots in deeply embedded patterns of gender inequality within society. A comprehensive recognition of these characteristics constitutes a prerequisite for developing effective strategies of prevention, intervention, and enforcement – not only at the legal level, but also at the level of organizational culture and broader social awareness.
THE CURRENT LEGAL FRAMEWORK OF THE UNITED STATES ON SEXUAL HARASSMENT IN THE WORKPLACE
Within the United States legal system, sexual harassment in the workplace is primarily regulated as a form of sex discrimination under Title VII of the Civil Rights Act of 196412. Section 703 of this Act prohibits employers from engaging in discriminatory practices with respect to hiring, terms and conditions of employment, promotion, or termination on the basis of sex. On this legal foundation, the U.S. Equal Employment Opportunity Commission (EEOC) issued regulations codified in 29 C.F.R. Part 1604, specifically §1604.11, in order to clarify the legal scope and substantive meaning of sexual harassment in the workplace13.
Pursuant to §1604.11(a) of these regulations, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, where: (i) submission to such conduct is made either explicitly or implicitly a term or condition of employment (quid pro quo harassment); (ii) submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual; or (iii) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. Notably, this provision prioritizes the “unwelcome” character of the conduct, affirming that the actual effect of the behavior may be as significant as the subjective intent of the perpetrator.
U.S. law also adopts an evaluative approach under §1604.11(b), whereby the U.S. Equal Employment Opportunity Commission (EEOC) does not assess the alleged conduct in isolation or through a mechanical application of formal criteria. Instead, the conduct is examined within the overall record of the case and in light of the totality of the surrounding circumstances. This evaluative process involves an analysis of the nature, severity, and frequency of the conduct, the relationship between the parties, as well as the spatial and temporal context in which the conduct occurred, in order to determine whether the behavior reaches the legal threshold of sexual harassment. The application of such a case-by-case assessment allows the competent authority to adapt its legal reasoning to the diverse and complex realities of workplace harassment, while maintaining consistency through established legal standards. Such an approach reduces the risk of oversimplification or the omission of relevant contextual factors and thereby enhances the effectiveness of legal protection for employees against sexual harassment in the workplace.
With respect to employer liability, §1604.11(d) of the Code of Federal Regulations provides that, in cases where sexual harassment occurs between employees, an employer’s responsibility is determined on the basis of a “knew or should have known” standard. Under this standard, an employer may be held liable if the employer itself, or its agents or supervisory personnel, knew or reasonably should have been aware of the harassing conduct and failed to take prompt and appropriate corrective action. However, such liability is not absolute. An employer may avoid responsibility by demonstrating that it implemented immediate and reasonable remedial measures aimed at stopping the misconduct and mitigating its consequences. This provision reflects the U.S. legal approach, which emphasizes the employer’s proactive duty to prevent and address sexual harassment, while maintaining a balance between effective employee protection and the avoidance of excessive or automatic liability for employers.
Notably, U.S. law adopts a broad approach to sexual harassment in the workplace and does not confine its regulation to internal employment relationships between employees and employers, or among employees themselves. Pursuant to §1604.11(e) of the Code of Federal Regulations, an employer’s legal liability may also arise from acts of sexual harassment committed by individuals who do not have a direct employment relationship with the employer, including customers, business partners, vendors, or other third parties, provided that such conduct occurs within the work context. In these circumstances, liability is likewise determined under the “knew or should have known” standard. An employer may be held responsible where it was aware, or reasonably should have been aware, of the harassing conduct and failed to take timely and appropriate preventive or corrective measures. This approach demonstrates that U.S. law links employer liability not only to the actions of individuals under its direct supervision, but also to the employer’s affirmative duty to ensure and maintain a workplace free from harassment, including risks originating from external actors. At the same time, the assessment of liability in such cases is conducted with flexibility, taking into account the employer’s actual degree of control over the harassing party and other relevant legal obligations. In this way, the U.S. framework reflects a balanced approach that seeks to protect employees while maintaining reasonable limits on the scope of employer responsibility.
In addition to establishing substantive criteria for identifying sexual harassment and mechanisms of liability, §1604.11(f) of the Code of Federal Regulations emphasizes a policy-oriented principle that “prevention is the best tool for the elimination of sexual harassment.” This provision imposes a proactive duty upon employers to foster a workplace environment that does not tolerate sexual harassment. Such a duty may be fulfilled through measures including the clear communication of an anti-harassment policy, the establishment of accessible and transparent complaint procedures, the dissemination of employees’ rights under Title VII of the Civil Rights Act of 1964, as well as the adoption of appropriate internal disciplinary sanctions and training or awareness programs. This approach demonstrates that U.S. law does not focus solely on addressing the legal consequences after misconduct has occurred, but also places significant emphasis on risk management and compliance obligations. In doing so, it shifts the regulatory focus from a purely punitive model toward a preventive framework aimed at cultivating a healthy and respectful organizational culture.
Furthermore, §1604.11(g) extends the scope of liability in situations where employment opportunities or professional benefits are granted to an individual because that person has acquiesced to sexual demands made by the employer. In such circumstances, legal responsibility may arise not only from the direct act of harassment, but also from conduct that constitutes sex discrimination against other qualified individuals who were denied the corresponding opportunities or benefits. This provision reflects the close connection between the quid pro quo doctrine and the principle of equal employment opportunity. It affirms that sexual harassment does not merely infringe upon the rights of the immediate victim, but may also distort the allocation of employment opportunities on the basis of sex. In doing so, such practices undermine the core non-discrimination principle embodied in Title VII of the Civil Rights Act of 1964.
Synthesizing the foregoing analysis, it can be observed that the United States has developed a relatively comprehensive and mature legal framework for the prevention and regulation of sexual harassment in the workplace. This approach is grounded in the recognition of sexual harassment as a form of sex discrimination, further elaborated through detailed regulatory guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) and reinforced by a substantial body of judicial precedent. Beyond clearly defining the forms of prohibited conduct, methods of assessment, and standards of employer liability, U.S. law also extends protection to employees against harassment risks arising from diverse actors and varied workplace contexts. To better understand how these legal provisions operate in practice, it is necessary to examine leading U.S. court decisions on workplace sexual harassment. Such an analysis provides valuable legislative and judicial insights that may inform the continued development and refinement of Vietnamese law in this field.
REPRESENTATIVE CASES IN THE UNITED STATES
U.S. law on sexual harassment in the workplace has been principally sculpted through judicial interpretation. Through a series of foundational decisions of the U.S. Supreme Court, the substantive meaning of sexual harassment, the standards for assessing the severity of misconduct, and the principles governing employer liability have gradually been clarified. Among these decisions, Meritor Savings Bank v. Vinson and Faragher v. City of Boca Raton stand out as landmark precedents that have profoundly influenced and structured the overall legal framework of the United States in this field.
A. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
The case of Meritor Savings Bank v. Vinson14 is widely regarded as a foundational precedent in U.S. law governing sexual harassment in the workplace. For the first time, the U.S. Supreme Court affirmed that sexual harassment does not exist solely in the form of conditioning employment, promotion, or economic benefits upon sexual demands, but may also manifest through the creation of a hostile, abusive, or intimidating working environment. The Court further held that such conduct likewise constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.
The plaintiff in this case was a female bank employee who alleged that, throughout the course of her employment, she had been repeatedly subjected to unwelcome sexual conduct by her direct supervisor. Such conduct included demands for sexual relations, unwanted physical contact, and other serious forms of sexual misconduct. Although these actions were not directly linked to decisions regarding termination or promotion, they occurred repeatedly over an extended period of time, thereby creating a working environment that was oppressive, intimidating, and seriously detrimental to the employee’s dignity.
A significant contribution of Meritor lies in the Supreme Court’s expansion of the interpretation of the phrase “terms, conditions, or privileges of employment.” The Court rejected the view that Title VII of the Civil Rights Act of 1964 applies only to discriminatory practices resulting in direct economic harm, such as wage reductions, termination, or denial of promotion. According to the Court, a hostile work environment created by sexual harassment may substantially affect an employee’s working conditions, psychological well-being, and overall ability to perform their job. Consequently, such conduct falls within the scope of anti-discrimination law, even in the absence of tangible economic injury.
In addition, this decision firmly established the criterion of “unwelcomeness” as a central element in determining sexual harassment. The Court emphasized that an employee’s apparent “voluntary” participation in sexual interactions does not automatically negate the existence of harassment. Within the context of an employment relationship marked by power imbalance, an employee may acquiesce to sexual conduct out of fear of losing employment, facing retaliation, or being subjected to adverse treatment. Therefore, the relevant legal inquiry is not whether the conduct appeared “voluntary” in a formal sense, but whether, in light of the employee’s behavior and the surrounding circumstances, the sexual advances were in fact unwelcome.
Moreover, Meritor illustrates the cautious approach adopted by the U.S. Supreme Court with respect to employer liability. The Court rejected the view that an employer should be held strictly liable for every act of harassment committed by a supervisor. At the same time, it clarified that an employer’s lack of knowledge or failure to receive notice of the harassment does not automatically preclude legal responsibility. Instead, liability must be assessed in accordance with principles of agency law, taking into account the role and authority of the supervisory employee, as well as the internal mechanisms established by the employer to prevent and address sexual harassment. This reasoning laid the groundwork for the further development of employer liability standards in subsequent cases.
From an academic perspective, Meritor Savings Bank v. Vinson was not merely a case resolving an individual dispute, but a pioneering precedent that laid the doctrinal foundation for the entire body of U.S. sexual harassment law in the workplace. The decision marked a significant shift in focus from examining only tangible personnel actions to assessing the overall quality and safety of the working environment. By recognizing that discriminatory harm may arise from abusive workplace conditions rather than solely from formal employment decisions, the Court contributed to a more comprehensive protection of employees’ rights and dignity within modern labor relations.
B. Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
The decision in Faragher v. City of Boca Raton15 represents one of the most significant rulings of the U.S. Supreme Court in establishing the legal framework governing employer liability for workplace sexual harassment committed by supervisory personnel. Through its interpretation of Title VII of the Civil Rights Act of 1964, the Court clarified the relationship between the individual misconduct of a supervisor and the legal responsibility of the employing entity.
In this case, the U.S. Supreme Court first affirmed that unwelcome physical contact, sexually offensive remarks, and statements implying the exchange of employment benefits for sexual favors, when repeated and sustained over time, may give rise to a hostile work environment. The Court applied the “severe or pervasive” standard to assess the gravity of the conduct, thereby distinguishing isolated acts of teasing or sporadic inappropriate behavior from conduct that reaches the threshold of sexual harassment constituting sex discrimination in the employment context under Title VII of the Civil Rights Act of 1964.
The distinctive contribution of Faragher v. City of Boca Raton does not lie primarily in defining what constitutes sexual harassment, but rather in the Court’s approach to employer liability. The Court held that where the harassing conduct is committed by a supervisor who exercises direct authority over the employee, the employer may be subject to vicarious liability for such conduct. The Court’s reasoning was grounded in principles of agency law. It emphasized that the supervisory position and managerial authority conferred by the employer create the conditions under which harassment may occur and persist within the workplace. Accordingly, the abuse of delegated authority forms the basis for attributing legal responsibility to the employer.
However, the U.S. Supreme Court rejected the view that an employer should be held automatically or strictly liable for every act of harassment committed by a supervisor. On this basis, the Court established what has come to be known as the affirmative defense doctrine, designed to limit employer liability in certain circumstances. Under this framework, where the supervisor’s harassing conduct does not result in a “tangible employment action,” such as termination, demotion, or an adverse reassignment, the employer may avoid or mitigate liability by demonstrating two elements. First, that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior. Second, that the aggrieved employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer. This doctrine reflects a calibrated balance between holding employers accountable for abuses of supervisory authority and recognizing their proactive compliance efforts in preventing and addressing workplace harassment.
In analyzing and ultimately rejecting the City of Boca Raton’s defense, the Supreme Court clarified the substantive meaning of the “reasonable care” requirement. The Court emphasized that the mere formal adoption of an anti-harassment policy, without adequate dissemination to employees, effective monitoring of its implementation, or the establishment of a meaningful complaint mechanism, is insufficient to satisfy the employer’s preventive duty. In Faragher, the City’s failure to distribute its anti-harassment policy to the beach employees, to supervise the conduct of the supervisory personnel, and to provide an independent and accessible reporting channel undermined its ability to invoke the affirmative defense. As a result, the employer could not demonstrate that it had exercised reasonable care to prevent and promptly correct the harassing conduct.
In addition to defining the scope of employer liability, Faragher also articulated a corresponding expectation placed upon employees who experience harassment. The Court held that where an employer has implemented reasonable preventive and corrective measures, the employee has a duty to make reasonable use of those mechanisms in order to mitigate potential harm. However, this obligation is not absolute. It arises only where the protective mechanisms established by the employer are genuinely accessible, effective, and safe, and do not expose the employee to an increased risk of retaliation. Thus, the Court’s framework balances the employer’s preventive responsibilities with a qualified expectation that employees utilize available complaint procedures, provided that such procedures are meaningful in practice.
Accordingly, Faragher v. City of Boca Raton established a relatively comprehensive legal framework governing employer liability for workplace sexual harassment under U.S. law. By combining the doctrine of vicarious liability with the affirmative defense mechanism, the U.S. Supreme Court articulated a balanced approach that seeks to protect employees from hostile work environments while imposing reasonable limits on employer liability within modern employment relationships.
Overall, Meritor Savings Bank v. Vinson and Faragher v. City of Boca Raton have clarified the U.S. legal approach to sexual harassment in the workplace, from recognizing it as a hostile work environment to establishing the framework for assessing employer liability. These landmark decisions have played a foundational role in shaping and refining the legal framework aimed at protecting individuals within the modern workplace.
LEGISLATIVE LESSONS FOR THE IMPROVEMENT OF VIETNAMESE LAW
On the basis of the foregoing analysis of the U.S. legal framework and the current state of Vietnamese law, several legislative and enforcement-oriented lessons may be identified to enhance the effectiveness of preventing and addressing sexual harassment in the workplace, as follows:
First, Vietnam should further standardize the criteria for identifying sexual harassment in a more substantive and objective manner, in order to avoid interpretations that rely excessively on qualitative or subjective assessments. The decision in Meritor Savings Bank v. Vinson demonstrates that a hostile work environment may constitute a legal violation even in the absence of tangible employment consequences such as dismissal, wage reduction, or denial of promotion. The key lesson is that Vietnamese law should not focus solely on visible or material outcomes within the employment relationship. Instead, it should clarify the legal threshold of harassment based on the severity, pervasiveness, or repetition of the conduct, as well as its impact on safe working conditions and the dignity of employees. Establishing a clear threshold would help reduce situations in which misconduct is evident in practice but difficult to address due to the lack of consistent evaluative standards.
Second, the U.S. experience suggests that Vietnam should place greater emphasis on the element of “unwelcomeness” in the legal definition of sexual harassment. The significance of Meritor Savings Bank v. Vinson lies in the Court’s refusal to equate apparent “voluntariness” with genuine consent in the context of employment relationships marked by power imbalance. This reasoning is particularly relevant to the Vietnamese context, where victims may remain silent or endure inappropriate conduct due to fear of losing their jobs, receiving negative evaluations, or facing retaliation. Accordingly, in refining statutory provisions and interpretative guidance, Vietnamese law should clarify that the absence of strong resistance, or the employee’s continued employment, does not automatically imply acceptance of the harassing conduct. Greater attention should instead be directed toward examining the surrounding circumstances, the relative power dynamics between the parties, the manner in which unwelcomeness is expressed, and the impact of the conduct on equal and safe working conditions. Such an approach would ensure a more substantive and context-sensitive assessment of sexual harassment claims.
Third, a prominent lesson derived from Faragher v. City of Boca Raton concerns the design of employer liability in a manner that incentivizes prevention. The U.S. approach neither imposes strict liability in all circumstances nor permits employers to evade responsibility merely by claiming lack of knowledge. Instead, liability is assessed with reference to the employer’s degree of control, the role and authority of supervisory personnel, and the effectiveness of internal compliance mechanisms. This experience suggests that Vietnam should shift its regulatory focus from a reactive model addressing misconduct only after it occurs to a preventive framework that requires organizations to establish effective anti-harassment systems as a condition of compliance. In other words, internal labor regulations should not function merely as formal prerequisites for disciplinary action, but as substantive compliance mechanisms designed to prevent and address harassment in practice. Accordingly, alongside improvements to the statutory framework, greater emphasis should be placed on employers’ obligations to ensure confidentiality, protect whistleblowers from retaliation, implement prompt and impartial investigation procedures, and cooperate with labor inspectorates. At the same time, state authorities should strengthen labor inspection and provide consistent interpretative guidance to ensure uniform enforcement. Such measures would enhance both accountability and preventive capacity within the workplace.
Fourth, drawing from U.S. practice and the guidance of the U.S. Equal Employment Opportunity Commission (EEOC), Vietnam should clarify the legal treatment of sexual harassment committed by third parties, such as customers, business partners, contractors, or other external actors, within the work context. The current lack of coherence among various statutory provisions in Vietnamese law has resulted in fragmented protection, particularly where the perpetrator falls outside the traditional employment relationship. The key lesson is that the law should adopt an approach grounded in the employer’s duty to ensure a safe working environment. Where an employer knew or reasonably should have known of the risk of harassment by a third party and failed to take appropriate preventive, protective, or corrective measures, a corresponding liability mechanism should be established. Failure to address this category of situations would undermine the broader objective of creating safe workplaces, especially in sectors such as services, retail, transportation, healthcare, and entertainment, where employees frequently interact with external individuals. Strengthening legal clarity in this area would enhance both accountability and practical protection for workers exposed to third-party risks.
Finally, in the context of digital transformation, international experience also suggests that Vietnam must give due attention to technology-facilitated sexual harassment (TFSH), particularly in relation to work-related messaging, internal chat groups, virtual meeting platforms, and emerging technologies such as deepfake content. Legal regulations and corporate compliance mechanisms should anticipate that harassment may occur not only within traditional physical workplaces, but also within the broader context of work-related activities, including digital spaces. This consideration is especially relevant in light of remote work models, the gig economy, and increasingly flexible employment arrangements, as previously discussed. If the concept of the “workplace” is interpreted too narrowly, many forms of harassment occurring on digital platforms may fall outside effective legal protection or become difficult to address in practice. A broader and context-based understanding of the workplace is therefore essential to ensure meaningful protection in contemporary labor relations.
In conclusion, the lessons drawn from the U.S. experience for Vietnam extend beyond the mere definition of sexual harassment in the workplace. They encompass the development of a coherent legal framework grounded in clear identification criteria, a context- and power-sensitive approach, and a model of employer liability that prioritizes prevention and timely remediation. Moreover, meaningful reform requires the expansion of protection against risks arising from third parties and digital spaces, as well as the establishment of safe and effective complaint mechanisms, robust anti-retaliation safeguards, and consistent enforcement practices. Together, these elements form the foundation for refining Vietnamese law in a manner that is both practically feasible and substantively protective of employees’ dignity within the modern workplace.
CONCLUSION
Sexual harassment in the workplace is a structural phenomenon closely linked to power imbalances within employment relationships, and it has become increasingly complex under the influence of digital environments and non-traditional work arrangements. Through an analysis of the U.S. legal framework and selected landmark decisions of the U.S. Supreme Court, particularly Meritor Savings Bank v. Vinson and Faragher v. City of Boca Raton, it becomes evident that an effective approach lies in recognizing sexual harassment as a form of sex discrimination, assessing misconduct in light of its context and actual impact, and linking employer liability to a proactive duty of prevention and risk control. A comparison with Vietnamese law indicates that, despite important legislative progress, the current legal framework still requires further refinement to ensure consistent identification, effective enforcement, and comprehensive victim protection. Strengthening these aspects will contribute to the development of a workplace environment that is safe, respectful of human dignity, and grounded in gender equality.
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Footnotes
1. Federal Act on Gender Equality (GEA), Mar. 24, 1995, SR 151.1 (Switzerland), https://www.fedlex.admin.ch/eli/cc/1996/1498_1498_1498/en (last visited Jan. 8, 2026).
2. Federal Office for Gender Equality (FOGE), Sexual Harassment in the Workplace (Aug. 21, 2023), https://www.ebg.admin.ch/en/sexual-harassment-in-the-workplace (last visited Jan. 8, 2026).
3. Catharine A. MacKinnon, Sexual Harassment of Working Women 1–55, 215–21, 239–55, 298–300 (Yale Univ. Press 1979).
4. Lilia M. Cortina & Emily A. Leskinen, Dimensions of Disrespect: Mapping and Measuring Gender Harassment in Organizations, 38 Psych. Women Q. 107, 107–23 (2014).
5. Joseph M. Kelly & Adele Sinclair, Sexual Harassment of Employees by Customers and Other Third Parties: American and British Views, 31 Tex. Tech L. Rev. 807 (2000).
6. Emma Ascott, Deepfake Sexual Harassment Is a Workplace AI Crisis You Can’t Afford to Ignore, Allwork (Apr. 2025), https://allwork.space/2025/04/deepfake-sexual-harassment-workplace-ai-crisis/ (last visited Jan. 8, 2026).
7. The gig economy – also called sharing economy or access economy is activity where people earn income providing on-demand work, services or goods. Often, it’s through a digital platform like an app or website.
8. S. Setyan, Sexual Harassment Against Telecommuters Working Remotely, Setyan Law APC (2023), https://setyanlaw.com/sexual-harassment-remote-workplace-gig-economy/ (last visited Jan. 9, 2026).
9. Edward, Sexual Harassment and Remote Work: Challenges and Solutions in the Digital Age, The Second Source (2024), https://thesecondsource.co.uk/sexual-harassment-and-remote-work-challenges-and-solutions-in-the-digital-age/ (last visited Jan. 9, 2026).
10. Employment & Commerce Law Group, Hostile Work Environment and Workplace Harassment: What Is the Difference Between Them? (Dec. 31, 2021), https://eclaw.com/blog/what-is-the-difference-between-a-hostile-work-environment-and-workplace-harassment/ (last visited Jan. 9, 2026).
11. Kate Millett, Sexual Politics (Univ. of Ill. Press 2000).
12. Civil Rights Act of 1964, Nat’l Archives, https://www.archives.gov/milestone-documents/civil-rights-act (last visited Jan. 9, 2026).
13. 29 C.F.R. § 1604.11 (2023), available at https://www.law.cornell.edu/cfr/text/29/1604.11 (last visited Jan. 9, 2026).
14. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
15. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).