LawEddie.com

If you would to ask your female friends, I don’t think many will tell you that they had have this experiences.

There are 3 reasons if you would to get this answer:

1. they may not want to tell you the true in order to avoid humiliation,

2. their answer may be true as they really have not encountered this problem, or

3.  they may have been sexually harassed but they may not even know that.

In view of this, it is rather crucial to understand what is sexual harassment in the workplace.

I derive the gist from the Code of Practice on The Prevention and Eradication of Sexual Harassment in the Workplace which is issued by Labour Office and make them into Q & A style (together with some of my personal observations) for your ease of reference: 

1. What is SEXUAL HARASSMENT?

Sexual harassment means: Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual,
psychological or physical harassment:
(i) that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
(ii) that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to her/his employment

(Observation 1: this is a “subjectively objective test”, whereby the subjective part is the it MUST be in the opinion of the  recipient/victim (“perceived by the recipient”) that such act is…, on another hand, in order to balance this, such opinion must be formed “on reasonable ground” which is the objective part of it.

 Observation 2: the victim can be male and female, unlike some of the offences, the victim must only be woman.)

2. How many CATEGORIES of sexual harassment?

There are 2 categories:

(i) Sexual coercion – is sexual harassment that results in some direct consequence to the victim’s employment. An example of sexual harassment of this coercive kind is where a superior, who has the power over salary and promotion, attempts to coerce a subordinate to grant sexual favours. If the subordinate accedes to the superior’s sexual solicitation, job benefits will follow.

Conversely, if the subordinate refuses, job benefits are denied.

2. Sexual annoyance-is sexually-related conduct that is offensive, hostile or intimidating to the recipient, but nonetheless has no direct link to any job benefit. However, the annoying conduct creates a bothersome working environment which the recipient has to tolerate in order to continue working. A sexual harassment by an employee against a co-employee falls into this category. Similarly, harassment by a company’s client against an employee also falls into this category.

(Observation: the relationship or parties involve, not only confine to co-workers, it also include client and the worker. I am sure it would also include contractor and employee though based on the employment law, external contractor doesn’t fall under the definition of employee.)

3. What do we mean by WORKPLACE?

Sexual harassment in the workplace includes any employment related sexual harassment occurring outside the workplace as a result of employment responsibilities or employment relationship. Situations under which such employment-related sexual harassment may take place includes, but is not limited to:

• at work-related social functions;

• in the course of work assignments outside the workplace;

• at work-related conferences or training sessions;

• during work-related travel;

• over the phone; and

• through electronic media.

(Observation: the key point is as along as the victim can prove that if not due to work he/she will not be subjected to such offence. The physical place of occurrence is irrelevant.)   

4. What are the FORMS of sexual harassment?

There are 5 possible forms, namely:

• verbal harassment : e.g. offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds, questioning.

• non-verbal/gestural harassment : e.g. leering or ogling with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, persistent flirting.

• visual harassment : e.g. showing pornographic materials, drawing sex-based sketches or writing sex-based letters, sexual exposure.

• psychological harassment : e.g. repeated unwanted social invitations, relentless proposals for dates or physical intimacy.

• physical harassment : e.g. inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing, fondling, sexual assault.

(Observation: I believe the list of form that constitutes sexual harassment is in-exhaustive. As mentioned earlier it is partly depend on how the recipient perceives it NOT the intention of the wrongdoer. As such the same “sex-jokes” may cause different feeling for different individual. Some may feel offensive despite “how mild the joke is” or the joke cracker may not have no intention at all to harass the victim. Entertainment can be no funny sometimes! )  

5. What should the employers do to COMBAT sexual harassment in the workplace ?

The employer should provide:

• a policy statement prohibiting sexual harassment in the organisation;

• a clear definition of sexual harassment;

• a complaints/grievance procedure;

• disciplinary rules and penalties against the harasser and against those who make false accusation;

• protective and remedial measures for the victim; and

• promotional and educational programmes to explain the company’s policy on sexual harassment and to raise awareness of sexual harassment and its adverse consequences among the company’s employees, supervisors and managers.

(Observation: How many employers know that it is their duties to do all this?)

6. What are the REMEDIES available?

•To encourage victims to report sexual harassment, there should be adequate measures to ensure maximum confidentiality so as to minimise embarrassment to the victim especially at the time of reporting and in the course of investigation into the complaint.

•In a case where the victim of sexual harassment has suffered a loss, such as a demotion or a denial of a promotion, it is appropriate to restore such person to his or her proper position on the job.

•The victim should also be compensated for any monetary loss arising out of a denial of employment-related benefits which were rightfully due to him or her.

•Where the complaints is found to be unjustified and baseless, appropriate remedy should be granted to the accused person if there has been any loss suffered by such person.

(Observation: The employer should be very careful and sensitive to the feeling of both parties when carrying out the investigation. The confidentiality is highly crucial otherwise it will deeply effect the reputation of the “wrongdoer” if the investigation result found that the allegation is not genuine. On anther hand, not many victim may want to report the offence if her/his identity is not kept confidential.)

7. Is this Code of Practice on The Prevention and Eradication of Sexual Harassment in the Workplace legally binding?

This answer can be found at clause 1 of the said Code which read:

“The aim of this Code of Practice is to provide guidelines to employers on establishment of in-house mechanisms at the enterprise level…”

(Observation: this seems to suggest that the Code is merely a guidelines which has no legal binding. On another hand, this doesn’t mean that the wrongdoer will not face any legal suit or prosecution as the victim, apart from reporting to the company and hoping to obtain the remedies as stated above (which is solely on the discretion of the company). can also turn to police who may investigate the case as criminal offence under Penal Code (Act 574). Criminal action still available for the victim.)