Is it sexual harassment if:
- You are threatened that you will be fired if you don’t sleep with your boss?
- You are patted on the back by your colleague?
- You are repeatedly complimented by a colleague on how nicely you dress?
- Your colleague posts a suggestive cartoon or poster on his bulletin board?
Sexual harassment in the workplace – surely it is not something pleasant to be discussed, especially if you are a victim to this horrendous act. However, one should never feel embarrassed to raise this or to speak up against this issue. It is appalling to hear that there is an increasing number of unreported cases of sexual harassment in the workplace notwithstanding the fact that Malaysian employment law was recently amended in 2012 to address this issue.
Prior to the amendment of the Employment Act 1955 (“Act”), there was no specific legislation to address sexual harassment (aside from the general provisions in the Penal Code), and we were reliant on the Code of Practice and the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“Code”) as a guideline for employees to safeguard themselves and for employers to provide employees with an appropriate recourse.
What exactly is sexual harassment?
According to the definition of the Act, sexual harassment is any “unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment”.
Looking at the phrases used in the Act such as “unwanted”, “sexual nature”, “offensive”, “humiliating”, “threat”, there is a significant amount of ambiguity that is open to interpretation on the part of employers, employees and the courts.
Interpretation of the above terms may vary drastically from person to person. Everyone has different perception about “unwanted conduct of sexual nature” due to the different level of tolerance for physical contact of any type. A quote from CNN illustrates this very well, “In fact, because a person’s individual sensitivities and need for personal space varies so widely, inappropriate touching — from a happy slap on the back to a welcoming kiss on the cheek to an angry pointed finger in someone’s chest — are all the subject of complaints to management.“
Let’s pause here for a moment to ponder – can a specific conduct amount to sexual harassment depending on the recipient?
The Act clearly states that the “unwanted conduct of sexual nature” must “arise out of and in the course of his employment”. The implication here is that conduct of a sexual nature (regardless how inappropriate it may be), may not amount to sexual harassment if the recipient consented to it.
Further, cases in Malaysia have shown that sexual harassment is proved when the submission to or rejection of such conduct by an individual is used by the employer as a basis for employment decisions. It is also a form of sexual harassment when such conduct interferes with an employee’s work performance, or it creates an intimidating or hostile environment for the employee and/or other employees.
At this juncture it is also important to highlight that the Act does not distinguish between male and female or employer and employee. Under the Act, sexual harassment can be committed by a female against a male, or an employee against an employer.
What should you do?
Should you encounter such unfortunate incident, here are some steps which would help you to seek proper redress:
- Confront the harasser firmly by stating that his/her behaviour is undesirable.
- If the harasser continues, report to your supervisor immediately.
- Record the incident in details i.e. when, who, where, how, and witnesses (if any).
- File a formal complaint in accordance with your company’s policies and procedures.
- Document EVERYTHING! You will be surprised at how contemporaneous documents and evidence can help you in the future.
Process of inquiry
All employers, regardless whether they fall within the Act, are required to inquire into a sexual harassment complaint. Failure to comply the same, shall, on conviction, be liable to a fine not exceeding RM10,000.00.
During the inquiry, you are required to present all your evidence and witnesses (if any) to the Investigating Officer. Please bear in mind that the alleged harasser will be there as well to defend himself/herself. Therefore, always be mentally prepared. You will find that even you have colleagues who have witnessed the incident, they may not want to testify due to fear, especially if the harasser is their superior.
Your employer will thereafter make a finding on your allegation/claim. If you are dissatisfied with the finding of your employer’s findings, you may take the matter up to the Director General of Labour Department (“Director General”) for a review. Once it is brought up to the Director General, the employer may be directed to inquire into the complaint again and is required to submit a report of the same to the Director General within 30 days.
So, what’s the remedy?
If the employer is satisfied that sexual harassment is proven, the harasser may suffer the following disciplinary action:-
- Be dismissed without notice;
- Be demoted; or
- Suffer a lesser punishment than the above as the employer deems just and fit; or
- Be suspended without wages not exceeding a period of 2 weeks.
Unfortunately, it is not uncommon to hear of the complainants being terminated by their employers after lodging a sexual harassment complaint. In the event that you are dismissed by your employer for lodging a bona fide complaint of sexual harassment, you are entitled to make a representation to the Industrial Department under section 20 of the Industrial Relation Act 1967 for unfair dismissal.
Depending on the nature of the allegations, a victim of sexual harassment may also sue the harasser in court based on tort. If successful, the victim may be awarded damages by the Court. Practically speaking, successful plaintiffs in Malaysia are unlikely to see damages in the magnitude of those in other jurisdictions such as the United States.
Be bold! Do not let the fear of losing your job stop or delay you from speaking up against sexual harassment issues in your workplace. Stand up for your colleagues, advocate for a better in-house mechanism or simply just stop engaging in sexual innuendos or involving in sexually charged conversations at the workplace.
For employers, please adopt a zero-tolerance policy for sexual harassment. You may start by drafting rules and regulations that identify specific behaviours that will not be tolerated in your workplace. Communication of the same to all employees must be clear and enforcement, consistent. Create an accessible and safe environment for reporting of such incidences in your company. This would certainly help in creating a better and safer working environment.
About the author: Joanne Ong is an associate in the dispute resolution practice group of Donovan & Ho. She graduated with a LLB (Hons) from the University of Manchester and is an advocate and solicitor of the High Court of Malaya. She has worked worked on a wide range of dispute matters involving debt recovery, conspiracy, fraud, land, bankruptcy, insolvency and defamation. Have a question? Please contact us.