Sexual Harassment In The Workplace
First things first. I’m secretly celebrating a small victory for sexual harassment victims in Malaysia. Like rape culture, sexual harassment is not really something we speak about here in our still largely conservative country.
In a recent report by The Star, a landmark ruling from Federal Court now allows victims of workplace sexual harassment to file a civil suit and claim damages from their harassers. According to the report, Mohd Ridzwan attempted to sue his victim for defamation. He claimed that the victim’s sexual harassment complaint caused his work contract not to be renewed. In return, the victim counter-sued him for sexual harassment. His case and appeal was dismissed and the victim’s counter-suit allowed.
WHAT IS SEXUAL HARASSMENT?
Sexual harassment is legally defined in Malaysia as:
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”
In an interview with Malaysian Digest, Betty Yeoh, Project Director of All Women’s Action Society (AWAM), described two types of sexual harassment – sexual annoyance and sexual coercion. Sexual annoyance bears no impact on work benefits and disturbs the victim. However, sexual coercion is the opposite. Not only does it disturb the victim, it affects work benefits such as promotions, salary increments, bonuses etc.
Examples of sexual harassment include:-
- inappropriate touching and/or bodily contact (eg. brushing against the body, pinching, etc.)
- licking lips
- offensive remarks
- unwanted persistent and repeated proposals for dates
- kissing sounds
- threatening to demote or fire you if you refuse to give sexual favours
- leering/ogling with suggestive overtones
- sending messages/images of a sexual nature
- showing pornographic materials
HELP I’M BEING SEXUALLY HARASSED!
1. Say No!
Firmly and clearly tell your harasser that their actions are unwanted.
(If the harasser ignores you and continues, you can also try yelling to attract attention even if the harasser is your ranking superior. Sexual harassment is an abuse of power and often harassers in the workplace don’t want to be ‘exposed’ so they can continue their behaviour. – ed.)
2. Report it to someone in your organisation.
For example, an employee/union representative, a senior personnel officer, Human Resources etc. If no action is taken, you can file a complaint at the Labor Department. Other organisations such as AWAM or WAO (even if you’re not a female victim) may also be able to help you.
3. Record the details every time it happens.
Write down names of your harasser(s), witnesses, other victims, date, time, location, what transpired, how you felt etc. Also, remember to keep copies of all communication between you and your harasser as evidence (e.g. emails, SMS etc.).
4. Write a clear letter to the harasser
Include a description of events, date, time and a clear statement that you want this behaviour to stop as well as a warning of further action for non-compliance. Add your signature and date. Ensure you make a copy for your personal records and have someone witness you transfer the letter.
5. Additionally, you may file a police report.
File a police report especially if you feel unsafe or think you are at risk of danger (e.g. further threats or potential escalation of the situation). This is also an alternative channel if your employer refuses to take action.
7. Get emotional support!
Tell a friend or speak to a professional sexual harassment counselor/therapist for emotional support. This can also help you regain your confidence plus reduce the stress and anxiety over the harassment and legal/reporting process.
There is no law in Malaysia specifically criminalising sexual harassment but legal action can be taken under the Penal code, Employment Act 1955 and the Industrial Relations Act 1967. In 1999, The Ministry of Human Resources released a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace. However it’s entirely voluntary for companies to adopt this code.
All employers must be responsible in swiftly following up with an inquiry to sexual harassment complaints. However, under the Employment Act (amended 2012), employers can refuse to open an inquiry if:-
(1) the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven; or
(2) the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith
[source: Employment Act 1955, Section 81B(3)(a),(b) ]
Your employer must inform you of this refusal and the reason(s) for refusal in writing no later than 30 days after the receipt of your complaint. Any employer who doesn’t follow this rule will be liable to a fine of not more than RM10,000.
If your employer finds the sexual harassment proven, they are legally required to take disciplinary action. This can include immediately firing your harasser, demoting your harasser to a lower rank or mete out a lesser punishment as they see fit. However, unpaid suspension cannot be more than 2 weeks. If your harasser is not an employee (e.g. independent contractor, customer, supplier, etc.), then they must be brought before the appropriate disciplinary authorities. For example, if it’s a customer make a police report and inform your superiors to be aware of this customer’s inappropriate behaviour.
If your employer refuses to open an inquiry, you can make a complaint to the Director General of Labour who can open an inquiry into your complaint. This means your employer will have to conduct that inquiry because if they do not, they are also liable to the same fine under Section 81B of not more than RM10,000 (Employment Act 1955).
If the Director General of Labor decides that sexual harassment has been proven, you can immediately terminate your contract of service without notice. You are also entitled to the same amount of wages if you were to resign with notice as well as termination benefits and indemnity that falls under the Employment Act 1955 (amended 2012) or your contract of service.