Gender-Based Workplace Violence: Judgment

Gender-Based Workplace Violence: The Labor Court of Appeals Held the Employer Liable for Moral Damages over the Circulation of Intimate Images in the Workplace

By Andrea Navarro

Panel I of the National Labor Court of Appeals issued its judgment in “G., L. v. Banco de Servicios Financieros S.A. et al. re: dismissal” (Case No. 509/2024/CA2), upholding (albeit with modifications) the joint and several liability of INC S.A. (owner of the Carrefour branch where the employee worked), Banco de Servicios Financieros S.A., and Life Seguros de Personas y Patrimoniales S.A. (formerly Cardif Servicios S.A.).

Beyond the issues typical of any dismissal, the central point of the ruling is the award of moral damages for an event that took place within the workplace: the circulation, among co-workers, of intimate images of the plaintiff, without the employer taking any action in response.

Witness testimony was decisive: five witnesses agreed that the incident was common knowledge throughout the establishment and that, despite the employee’s complaints to her superiors, there was never any institutional response. That corporate silence was the key that unlocked the finding of liability. Before analyzing the grounds of the decision, it is worth pausing on three concepts that run through it: moral damages in labor law, injuria laboral (serious contractual breach), and workplace harassment as a figure that still lacks comprehensive regulation.

Moral damages in labor law

Moral damages are the injury to a person’s non-pecuniary interests: their spiritual integrity, their dignity, their peace of mind. In the labor context they have a particular feature: they coexist with a system of statutory, fixed-amount compensation (seniority, notice pay, Sections 1 and 2 of Law 25,323, Section 80 of the Employment Contract Law or LCT), which repairs the economic aspect of the termination but does not, in principle, cover the employee’s emotional suffering.

For that reason, when the claim goes beyond the mere termination and is based on a wrongful act (such as harassment, the circulation of intimate images, or any other conduct that violates the employee’s dignity), the avenue for redress is not the LCT but the general regime of civil liability (Sections 1737 to 1741 of the National Civil and Commercial Code). For the claim to succeed, the classic requirements must be met: unlawfulness (conduct contrary to law), certain and personal harm, an adequate causal link between the act and the injury, and a basis of attribution (objective or subjective) allowing the harm to be imputed to the party sought to be held liable. In the ruling under review, the Court found both bases present: the objective one (Section 1753 of the Civil and Commercial Code, liability of the principal for the acts of its employees) and the subjective one (the employer’s failure to act in the face of a known incident).

Injuria laboral

Section 242 of the LCT defines injuria as any contractual breach so serious that it does not allow the employment relationship to continue. It is the standard that entitles the employer to dismiss for cause, but also the one that allows the employee to treat themselves as constructively dismissed (Section 246 of the LCT) when the breach comes from the employer.

In cases of workplace harassment or violence, injuria on the part of the employer can arise in two ways: through the hostile conduct itself, when it comes from the person exercising managerial authority, or through the employer’s failure to act in the face of violence carried out by other employees of the company (co-workers, superiors). In the latter scenario (that of the case under review), the breach lies not in the original act but in the company’s passivity once aware of it, which violates its duty of safety and of safeguarding the employee’s dignity. Had the employment relationship continued, that same breach would have entitled the employee to consider herself constructively dismissed.

In this case, since she was dismissed without cause by the employer, it operated instead as an independent ground for the moral damages claim.

Workplace harassment: a figure without comprehensive regulation

Unlike sexual harassment or gender-based violence (which do have specific regulatory frameworks), workplace harassment (also known as “mobbing”) lacks a national law in Argentina comprehensively regulating it in the private sector.

Faced with that legislative gap, case law has built employer liability on general principles: the duties of good faith, safety, and protection of the employee’s psychophysical and moral integrity (Sections 62, 63 and 75 of the LCT), combined with the civil liability regime of the Civil and Commercial Code. That is exactly the path the Court followed in this ruling: in the absence of a standalone legal category of “workplace harassment through the circulation of intimate images,” liability was built on those general duties, together with the characterization of the incident as gender-based workplace violence, which does have a specific regulatory framework.

ILO Convention 190

Convention 190 of the International Labour Organization (2019), ratified by Argentina through Law 27,580 and in force in the country since 2021, is the first international treaty to recognize the right of everyone to a world of work free from violence and harassment, including gender-based violence. Its Article 1 defines violence and harassment as “a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm.”

The Convention does not require repetition or a systematic pattern, and it accepts that a single episode, if sufficiently serious, may constitute workplace violence. This was the standard the Court expressly invoked to characterize the facts of the case, even though it involved a single episode of image circulation.

Law 26,485 and gender-based workplace violence

Law 26,485 on Comprehensive Protection to Prevent, Punish and Eradicate Violence against Women expressly identifies workplace violence as one of its modalities (Section 6, subsection c), and its Section 4 defines violence against women in broad terms, encompassing any conduct that, based on an unequal power relationship, affects her dignity or her physical, psychological or sexual integrity, in both the public and private spheres.

A central contribution of this law, decisive in the ruling, is Section 16, subsection i), which guarantees women victims of violence “broad evidentiary latitude to prove the facts reported, taking into account the special circumstances in which acts of violence take place and who their natural witnesses are.”

This relaxation of evidentiary standards is what allowed the facts to be deemed proven, despite the absence of a contemporaneous formal complaint or direct documentary evidence, solely on the basis of consistent testimony from former co-workers.

Lessons for companies

Distilled from this ruling, the path employers should ideally follow in cases of workplace violence or harassment is as follows:

  • Launch an investigation immediately upon becoming aware of the incident, whether or not a formal complaint has been filed.
  • Support the affected person, avoiding revictimization or isolation, and not exposing her to employees in the area who may have caused the harm.
  • Adopt concrete measures to stop the circulation and sanction those identified as responsible.
  • Document the entire process: the absence of any record of action was, in this case, the evidence against the defendants.
  • Have protocols and training on gender and workplace violence that are operational, not merely declaratory, aligned with Law 26,485 and ILO Convention 190.
  • Have a reporting hotline for cases of workplace harassment and violence.

Closing: the significance of the ruling

The judgment consolidates a line of case law that expands the standard of employer liability: it is no longer enough “not to have committed” the harmful act. The failure to fulfill the duty to act in the face of a known situation of workplace violence is, in and of itself, an independent source of civil liability, even in the absence of a law specifically defining workplace harassment. In addition, the ruling sets a predictability ceiling for quantifying moral damages in these cases, using Section 182 of the LCT as an analogous parameter, and reaffirms the operative force of ILO Convention 190 and Law 26,485 as central tools for adjudicating gender-based workplace violence.

For employers, it is a concrete wake-up call: inaction in the face of a known incident of gender-based violence at work now carries a certain and quantifiable financial cost.