In every office place, there’s bound to be some dirty jokes or innuendos thrown around. Most of the time, you laugh along when it happens because you acknowledge it as office banter. However, there may be certain jokes that make you feel uncomfortable, or your boss may ‘jokingly’ ask you to share a room with him in a way that makes you want to run away from that company.
Often times, you feel confused about speaking out because...does that count as sexual harassment?
Sexual harassment at the workplace is a difficult thing to navigate. If you are being sexually harassed by your superior, you feel like there is no avenue for you to speak out. If it comes from a colleague, you may feel like you would be branded as a troublemaker. In both situations, you would probably feel uncomfortable or even unsafe at your workplace.
With this in mind, ASKLEGAL sat down with Amirul Izzat, a lawyer attached with Donovan and Ho, who deals with employment matters – including sexual harassment – to find out more on how sexual harassment complaints can be made and how they are dealt with when it happens at work.
To kick us off…
What is sexual harassment?
Prior to certain amendments that took place in the law in 2012, the only thing that employees could rely on is the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace. However, this Code does not have any force of law (this means that it has no legal effect) and merely lays out a guideline for companies which they can choose to follow or ignore.
In 2012, the government amended the Employment Act 1955 (“EA 1955”) and came up with a new part dealing with sexual harassment. Now, section 2 of the Act defines sexual harassment as:
“sexual harassment means 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”
Amirul explains that the Code also divides sexual harassment into two categories - sexual coercion and sexual annoyance:
“The definition of sexual harassment under Article 4 of the Code actually divides sexual harassment into 2 categories but this Code is merely used as a guideline and has no force of law.
The two categories that can be found in Article 4 are sexual coercion and sexual annoyance.
Sexual coercion is sexual harassment that results in some direct consequence to the victim’s employment. For example, the victim would be offered a promotion or job benefits in return for sexual favours.
On the other hand, sexual annoyance is conduct which is offensive, hostile, or intimidating to the recipient. Basically, it is conduct that creates a bothersome working environment that a recipient has to tolerate. This typically manifests between employees.” – Amirul Izzat, employment lawyer
As a TLDR; sexual harassment is defined very widely and can be anything from a look, a word, a touch. Now that we’ve established the boundaries, let’s move on to next big question.
How are sexual complaints investigated by companies?
Section 81B of the EA states that employers have a duty to investigate into any sexual harassment complaint within 30 days from when the complaint was made. However, Amirul points out that as of now, the Employment Act does not provide a guideline as to how these investigations are to be carried out.
On the other hand, Article 15 of the Code states that employers must have a separate complaint or grievance procedure to deal with sexual harassment complaints as normal procedures are unsuitable to deal with complaints of a sexual nature. However, once again, there is no exact guideline for how the separate complaint procedure is to be implemented.
Basically, the EA provides the timeline for when the complaint has to be investigated but neither the EA nor the Code state how the company is supposed to deal with it.
“Guidelines for the conduct of the investigation are being discussed at the Ministry level but have yet to be passed. As such, employers are currently given free reign as to dictate the process in which these complaints are being investigated and handled, so long as they adhere to the general rules of natural justice.” - Amirul Izzat
The general rules of natural justice are that each party has a right to be heard – the accused similarly has a right to know who is accusing them, and they have a chance to present evidence in support of themselves.
What if nothing is done or you are not happy with the decision?
If you have lodged a complaint with your employer and no action has been taken, section 81D of the EA 1955 provides that a complaint can be lodged to the Director General of Labour who will then direct the employer to conduct an inquiry and then submit a report to the Director General within 30 days. In the event that the harasser is the owner of the company (like in a Sdn. Bhd.), a complaint can be made directly to the Labour Department. Click here for more information on making a complaint.
On the other hand, if you are unhappy with the decision of the investigation, Amirul says that:
“If an employee is unhappy with the employer’s inquiry outcome, they may file a complaint to the Director General on the sexual harassment incident, wherein the Director General may upon assessment of the complaint direct the employer to re-inquire into the complaint.” - Amirul Izzat
But what if you’re still unhappy with the outcome of the new investigation, after the complaint to the Director General?
If an employee is unhappy with both decisions, it is possible that the employee could deem themselves constructively dismissed on the basis that the employer has failed to provide a safe working environment and state that the investigation into the complaint was done in bad faith” – Amirul Izzat
This means that you may be able to claim constructive dismissal because your employer failed to provide you with a safe environment. Constructive dismissal is when your boss does not outright fire you but because of how he acts, it might actually be an unfair dismissal. You can read more about it here.
However, this is fact-dependent and you would have to check with your lawyer to find out if you would fall under this category.
Will the company ensure your safety during the investigation?
“Companies have to balance the need for confidentiality against the right of the accused person to defend themselves. Complaints should only be on a “need to know” basis. In some warranted situations, the company may suspend the accused employee to prevent them from interfering with the investigations / tampering with witnesses.” – Amirul Izzat, employment lawyer [emphasis added]
While maximum confidentiality has to be ensured, this has to be balanced against the right of the accused harasser to defend themselves or even confront their accusers, if the complaint is deemed frivolous or done in bad faith. Amirul gave us an example where if the accused person doesn’t know who they allegedly harassed, it would make it difficult for them to defend themselves.
To sum up the procedural aspects of a sexual harassment complaint, it can be said that while there are no set guidelines on how to handle a sexual harassment complaint, it must be given utmost confidentiality and must adhere to the principles of natural justice plus those who are unhappy with the decision can appeal it.
At this juncture, some of you may envision that all the complainants would be women but…
The law does not distinguish by gender
ASKLEGAL asked Amirul if there were statistics for how many complaints came from men. Unfortunately, he didn’t have any but he did tell us that:
“It is a misconception that only females are victims of sexual harassment, or that only men are the offenders. The law of sexual harassment does not distinguish by gender” - Amirul Izzat
Generally speaking, many of us fall into the trap of thinking that only women are victims and only men are the aggressors. The law on sexual harassment does not make this distinguishment; it covers any sexual harassment done to any gender by any gender.
To give an example of a woman as the aggressor, we have the recent 2018 case of Shamani Devi Chendra Chekheran v Shangri-la Hotels and Resorts where a woman was found guilty for sexually harassing her male superior through Facebook and SMSes.
The court ruled that her postings and messages sent to him could cause sexual annoyance and the vulgar, sexually explicit words were offensive and clearly amounted to sexual harassment. To illustrate how wide the definition of sexual harassment is, these were the terms/phrases that the court ruled as sexual harassment:
“thank you for signing the letters for the trip...mmmmuax!!!”
“[that he was] staring at the ass [of another agent]”
“U R MY UBBIE Always and FOREVER!!!”
In addition to that, she had also sent messages asking her superior if he was having an affair with anyone and that she couldn’t help thinking of sex whenever she looks in her superior’s eyes. While some of us may be surprised that things like that happen, this is only the tip of the iceberg. For example, there was recent outrage over the story of medical housemen being sexually harassed by a senior doctor who attempted to kiss, hug, and laid on innuendos to his junior doctors, medical officers, and specialists.
Oh, and one more thing...
If all else fails, you can sue
Sexual harassment has recently been made a tort in Malaysia (read more about tort law here) so you would be able to bring a civil suit for it. Aside from that, you can also lodge a police report as it is a crime under our Penal Code.
If you think that you have been sexually harassed, do speak to your Human Resource Manager and/or a lawyer.