Sexual harassment in its various forms constitutes a wide-spread phenomenon that affect people at work as well as in informal contexts. Unlike rape and domestic violence, in Malaysia, sexual harassment has only recently been articulated and recognized as a social problem. The first attempt by the Malaysia government to define and address sexual harassment in the work place was Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (Code of Practice) which was launched in August, 1999. While the Code of Practice is comprehensive in its definition of sexual harassment, it is not legally binding. As such, since 2004, the Ministry of Human Resources (MOHR) had proposed several amendments to the Employment Act 1955 (EA) to give the needed legal backing to the Code of Practice. The amendments enables the victims of sexual harassment to seek legal redress and will be an offence punishable by law, the amendment only came into force in April, 2012.
The changes added Part XVA which states, “Sexual harassment is now defined in the Act as any “unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person; the act which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.”
International Labour Organisation (ILO), has defined sexual harassment as a clear form of gender discrimination based on sex, an occurrence of unequal power between men and women which relates to the gender or social roles. The ILO has called it a violation of the fundamental rights of workers, a safety and health hazard, a problem of discrimination, an unacceptable working condition, and a form of violence, usually against women workers (ILO Resolution on Equal Opportunities and Equal Treatment for Men and Women in Employment, 1985 and ILO Resolution on ILO Action on Women Workers, 1991).
Sexual harassment is an offence that contains numerous intersecting issues of human rights, gender equality, dignity, health, work conditions, productivity, freedom to practice and chose one’s profession, right to livelihood, to name a few, since it impacts on all these areas. If workplaces are not made free of discrimination for women, then a community is set-back. More importantly, it personalises, silences and makes invisible, a systemic pattern of violations in the workplace and puts women at risk. In that sense, the importance of naming and censuring the problem in law cannot be understated.
Sexual harassment does not affect women alone, as men can also be victims. However, women are more vulnerable due to their position in society. Most sexual harassment is carried out by men against women. Sexual harassment affects victims regardless of age, relationship, disability, physical appearance, background or professional status.
Sexual harassment can be committed by:
- an employer
- group of co-workers
- client or customer or
- a member of the public
Research conducted by the Australian Human Rights Commission found that people are often unclear of what constitute workplace sexual harassment, and if they do experience it or witness it, most don’t report it either because they don’t think it is serious enough or they are afraid of the repercussions. The research also highlighted that in most cases, the victims realize that something is ‘not right’ but do not immediately realize the implications, with many not even recognizing that they are being harassed and most are at a loss on how to deal with it.
Generally, there are two forms of sexual harassment:
- Quid pro quo: an employment decision — like a promotion, an assignment, or even keeping your job — is based on your submission to the sexual harassment.
Unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of employment or (2) submission to or rejection of such conduct is used as the basis for employment decisions.
- Hostile work environment: the sexual harassment makes your workplace environment intimidating, hostile, or offensive.
Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute hostile-environment sexual harassment when the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or of creating an intimidating, hostile, or offensive working environment. Courts consider several factors to determine whether an environment is hostile, including (1) whether the conduct was verbal, physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile or patently offensive; (4) whether the alleged harasser was a co-worker or supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.
Lack of legal definitions, legal and financial responsibilities of organisations and employers, redress processes, payment of damages and fines are the main factors which does not encourage the victims to lodge a complaint. However, Code of Practice is only effective if both the employers and employees are aware of it. Hence, it is of utmost importance to identify the level of awareness amongst members in the corporate world on sexual harassment, the types of sexual harassment predominantly found in Malaysian corporate world as well as the recourse action that victim of sexual harassment may choose to take.
Although the Code of Practice on the “Prevention and Eradication of Sexual Harassment in the Workplace” came into force in August 1999, and the criminalization of sexual harassment in the workplace was introduced following the recent amendments to the Employment Act 1955, effective April 1, 2012, there is still a lot of room for improvement.
In order to ensure a safe working environment, employers of both public and private sectors are encouraged to implement measures to tackle and keep sexual harassment in the workplace at bay. It is the moral obligation of the employer to safeguard its employees from any unwelcome hazards that could have unwanted psychological effects on the victim but could also negatively affect productivity, after all.
The Equal Opportunities Commission (EOC) (2005) have illustrated a number of ways in which sexual harassment can be prevented, for example: developing a clear policy for preventing and tackling sexual harassment; ensuring that all employees are aware of and understand the policy; treating sexual harassment as a health and safety issue; monitoring policy implementation; adopting a complaints and investigations procedure for dealing informally and formally with sexual harassment; being aware of how the law applies to sexual harassment and employer liability.
In May 2002, London Underground was awarded the prestigious “Opportunity Now Public Sector” award for its wide-ranging Ending Harassment Programme. Harassment was reported as a widespread problem for London Underground. The organisational culture was perceived to tolerate harassment. Victims had problems complaining about harassment and managers were ineffective in terms of skills to help them to deal with any complaints. This had a negative impact on the organisation, with increased levels of absenteeism. In response to this wide-ranging problem, the company conducted a series of think tanks, which involved mixed groups of staff, including union representatives. These sessions included brainstorming, which was aimed at tackling each area identiﬁed through the consultation exercise.
The programme was agreed in 1999 and its primary objectives were to: establish, in partnership with trade unions, an effective procedure for dealing with harassment; provide independent support for victims; ensure increased levels of expertise for all those dealing with harassment cases; establish an effective monitoring system and success indicators and change the organisational culture to one where there was zero tolerance towards sexual harassment. A new workplace harassment policy was issued to all members of staff. Independent support for victims was provided through the establishment of a network of trained harassment advisors. Expertise was also increased through the establishment of a network of managers who were accredited for dealing with harassment and who could deal with formal complaints. Training was also provided for human resource teams. Success indicators consisted of: an increase in the numbers employees seeking initial help from harassment advisors; an increase in the number of harassment of cases reported; an increase in the number of perpetrators of harassment being disciplined.
by Mathy Wijen Randhawa, HR Consultant