Sexual Harassment at Workplace

1) Introduction

The traditional view that women should only confine themselves to house-chores is no longer

tenable in the reality of today’s world1.Their contributions to the workforce and the economy are

extremely vital to the development of a country. However, involvement in the workforce has

exposed women to sexual harassment in their workplaces Sexual harassment is a universal issue

and has increased considerably during the last two decades2. However, the understanding of sexual

harassment in workplaces is still not clear and is at best ‘sketchy’. Research has demonstrated that

approximately 50% of women in any research sample have experienced unwanted and offensive

sex-related behaviors at work places. All forms of sexual harassment in workplaces are unwelcome

and unwanted. Sexual harassment in the workplace arises when the employer uses his position in

the working area to sexually harass his subordinates. Since places of employment are ‘home’ for

more than half of employees’ lifetimes in terms of total hours spent, it is important to create a

pleasant and conducive workplace for both male and female employees. Sexual harassment is said

to be related to the concept of the liberties and equality of an individual3. Article 5(1) of the Federal

Constitution of Malaysia states that no person shall be deprived of his life or personal liberty saves

in accordance with the law4. Sexual harassment also results in the violation of the fundamental

rights in gender equality and the right to liberty and life as enshrined in the Federal Constitution.

1
Voydanoff, P. Work and Family Life. England: Saga Publications, Inc, 1987 .
2
Welsh, S. Gender and sexual harassment. Annual Review of Socialogy, 1999: 169-190.
3
Magley, V. J., Hulin, C. L., Fitzgerald, L. F., & DeNardo, M. Magley, V. J., Hulin, C. L., Fitzgerald, L. F., &
DeNardo, M.Outcomes of self-labeling sexual harassment.Journal of Applied Psychology, 1999: 390-402.
4
Bari, Abdul Aziz. Malaysian Constitution: A Critical Introduction . The Other Press, 2003.
Since sexual harassment involves the right and liberty of an individual, consciousness of the

concept and effects of sexual harassment is crucial.

2) Harassment definition

Harassment consists of offensive, abusive, belittling, humiliating, and threatening or intimidating

behavior directed at a person or a group of persons. Asghar Ali Mohamed (2011) defines sexual

harassment as unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual,

psychological or physical harassment that might, on reasonable grounds, be perceived by

recipients as placing a condition of a sexual nature, or an offence or humiliation, or a threat to their

well-being5. Jashpal Kaur Bhatt defines sexual harassment simply as unwanted and unwelcome

sexual conduct which leads to a hostile and intimidating work environment. Sexual harassment is

an act of “an unwanted intrusion on a woman or women by a man or men, and therefore as ‘sexism’

or ‘sexual politics’ under another name”6 while Stanko views all violations of women by men in

terms of “intimate intrusions”. The “Any form of harassment which is deemed as sexual in nature,

made by an individual against a specific person at work-site, jobsite or non-work-related

activities such as attending business events, trainings and social events organized by the company

requires immediate attention, assessment and affirmative action to determine if such act by an

individual is constitute as sexual harassment7. Sexual harassment can take several forms, such as

cat calls, wolf whistles, ‘curb crawling’, and sexual jokes and comments which result in an

offensive feeling in the affected employee. Harassment can be verbal and includes uncomfortable

5
Mohamed, A. A. A. Sexual harassment at the workplace in Malaysia. Kualalampur : CLJ publication, 2011
6
Bhatt, J. K. Sexual Harassment in the Workplace-Legal Redress for a Gendered. UITM Law Review, 2007: 33-54.
7
Stanko, E. A. The Meanings of Violence. London, Routledge. London: Routledge, 2003.
and offensive teasing, joking, questioning, jesting, kidding or making suggestive remarks or

sounds, or verbal repartees

3) Workplace definition

The scope of workplace covers two main areas that are job-site and work-site. Jobsite is referred

to the location of the physical office and work-site is referred to the location of the work that is

carried out. As such a work-site can be within the office or at any specific location outside the

office which also includes job assignment outside the country. In fact, “PERKESO” (SOCSO) also

uses this term in determining occupational accidents that leads to injuries and death when

evaluating any claims made by their registered members or their spouses or family members

4) Law in Malaysia and code of conduct

The Employment (Amendment) Bill 2011(“Bill”) (DR 15/2011) was tabled in Parliament and

passed in 20128. The Bill also introduced Part XVA titled Sexual Harassment which makes sexual

harassment at the workplace illegal, regardless of the wage level of the employee. Looking into

the importance of managing and eradicating sexual harassment at workplace, revised

the Employment Act 1955 (EA1955) included the scope and definition of Sexual Harassment

under Section 2 and included new section – Section 81 which emphasizes on sexual harassment

complaints made by the victim and the investigation process and action by HR department. The

Labour Department have made it mandatory for all organization to have a Sexual Harassment

Policy in place as part of the EA1955 compliance after it came into force in the year 2013.

8
The Employment (Amendment) Bill 2011
With the revision of the EA1955 which includes the Sexual Harassment Policy and Procedures,

the HR department must take the lead and initiative to develop a proper policy and procedures and

educate their management, employees and non-employees with the relevant information about

sexual harassment at workplace. Clear and comprehensive code is required on the understanding

of sexual harassment and the legal requirements and the proper steps in acting. So, information on

the following should be discussed and shared - the meaning of sexual harassment, what constitutes

as harassment, what is not deemed as sexual harassment, sexual harassment complaint and

investigation procedures, false report action and punitive action on genuine cases.

Definition of Sexual Harassment at Workplace

Article 4 of The Malaysian Code of Practice (Prevention and Eradication of Sexual Harassment

At Workplace ,2000) defines it as any form of “Sexual Advances” or Sexual Favors whereby

submission to such conduct is made explicitly (actions) or implicitly (intention) and it is repeated

and interferes with your job.

The Employment Act 1955 under Section 2 defines sexual harassment as any unwanted conduct

of 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 during his

employment.

Types of Sexual Harassment

Article 5 of the Malaysian Code of Practice states 4 types of Sexual Harassment

a. Sexual Annoyance
Sexual related conduct which is offensive, hostile or intimidating to the recipient and it has no

interference on the job but effects person emotionally. Example; an employee is repeatedly is

asked to go out for a date.

b. Unwanted Sexual Attention

Refers to forms of sexual harassment which is verbal, non-verbal, visual, psychological and

physical such as sending provocative or vulgar messages, sending sexual related images or making

provocative jokes or the certain extent invading their personal space at workplace and/or

sometimes making physical moves against the employees will.

c. Sexual Coercion

Refers to where the harasser is soliciting sexual favors using authoritative power against the

recipient (victim). Coercion may be used in the form of favors (reward and recognition)

or threat (loss of opportunity or fear of losing job). In legal term it is defined as “Quid Pro Quo”

or “This For That.”

d. Sexual Assault

Where the harasser uses aggressive approach of sexual harassment which may include physical

force such as

(a) Physically forcing an individual to have sex

(b) Offensively having body contact

(c) Attempt of rape

What is deemed as Sexual Harassment

It is only considered as Sexual Harassment if such act or behavior is targeted at an intended person

or targeted at a specific individual and the victim or complainant has rejected such

invitation through any form of ways.

Conditions that Deemed as Sexual Harassment outside the Workplace

As mentioned earlier, any forms of harassment by fellow employees or associates from the

organization made against another employee which are sexual in nature that happens outside the

office or workplace shall be deemed as sexual harassment. Examples of such incidents happening

outside office are as per below: -

a) Work related social functions

b) In the course of official work-related travel

c) Work related seminars or workshops etc.

d) Over the phone

e) Through electronic media

The above acts outside workplace is also mentioned in Article 6 - The Malaysian Code of

Practice (Prevention and Eradication of Sexual Harassment at Workplace, 2000)

What is not deemed as Sexual Harassment

If an employee did not reject any form of act or behavior and had remained silent and or have not

made any attempt to stop it, then it will not deemed as sexual harassment. For example, if the

employee had received some form of gifts and had responded to some messages in the past or had
gone out for any date together but later feel it is not acceptable may not have be able to justify her

complaint as she has mutually consented through her past action.

Any act by an individual that is made to a group of employees even it is a form of provocative or

sexually related jokes or comments is not deemed as sexual harassment because it is not targeted

at a specific person. However, it is deemed under HR code of practice as “unethical

behavior” which may lead to caution or warning by the Management to the person who had made

such act so as treat workplace with respect and professionalism.

Sexual Harassment Complaint Procedures

The EA1955 – Section 81A allows the grieving employee who feels that he/she has been harassed

sexually to make a written complaint to the HR department. The law has clearly defined sexual

harassment complaint can be made by an individual against another person if there are elements

of act that is sexual in nature and this also includes making gender related comments that are

humiliating or offensive. In a nutshell, complaint can be made if there is any incident involving:

 Male employee harassing a Female employee

 Female employee harassing a Male employee

 Male employee harassing another Male employee

 Female employee harassing another Female employee

Victim’s Role and Action

When continuous harassment happens, the victim must undertake the following steps –

STEP 1 – Make an Immediate/Prompt Action – Confront, Trigger and Communicate

Immediately tell “OFF” the offender that you do not “ACCEPT” such response (Confront) and

inform the immediate superior verbally of such harassment without revealing the details of the

offender (Trigger). If possibly try to speak to the offender of your non-acceptance and your

concern (Communicate) but do it in a subtler way without hurting the offenders feeling. If the

harassment continues then next step is to make a formal complaint to the HR department.

STEP 2- Formal Complaint on Sexual Harassment

Write an “Official Complaint” to the Human Resources Department in charge of employee

relations or industrial relations stating: -

(I) Date of incident

(ii) Time of incident

(iii) Location of incident

(iv) Frequency of incident

Investigation Procedures by the HR department

As per the Section 81A, HR department must proceed with preliminary investigation within 30

days from the date of receiving the complaint. Outcome of the investigation must be notified to

the complainant or the victim.

If the findings from the investigation shows no substantial evidence, then the HR department shall

notify the victim in writing and keep in file the records of the investigation for future reference in

the event the victim makes a follow up complaint of similar nature.

However, if the findings justify that such act indeed is” True” based on evidence adduced, the

HR department shall proceed with the disciplinary action to curb and deter such further incidents

from happening. Such prompt action will also provide greater trust and confidence for the alleged

victim to carry out her work without any worries, fear or emotional instability.

Education and Awareness – Employers’ Role and Responsibilities

Though the introduction of Sexual Harassment – Code of Practice in year 2000 and recently the

inclusion of Sexual Harassment guidelines in the Employment Act 1955 as a preventive plan, it is

important for employers to play a pivotal role in curbing and controlling such acts from happening

at their respective workplace. To achieve this, each and every employer must advocate the

importance of managing sexual harassment by educating all employees on the meaning of such

harassment with clear information and what is the penalty for non-compliance to such policy at

workplace. To do this, an awareness campaign must be executed together with promotional

activities such as conducting talks and trainings on sexual harassment and putting up posters as

tool to pass the message across9.

The introduction of provisions on sexual offences into the Employment Act 1955 is commendable

as it now has legal force. The new amendment has brought new dimension into labor relations

where the protection of sexual harassment at the workplace is clearly spelt out. It provides criminal

sanctions on wrongdoings where employers are legally bound to initiate action once a complaint

is made. This is considered a new dawn in Malaysian labor relations particularly for women

employees.

9
Lee, Kamal Halili Hassan & Yee Zing. Sexual Harassment in the Workplace: Selected Court Cases and New Legal
Provisions in Malaysia. Asian Social Science, 2015
 5) Examples of cases

Women employees who resign their jobs on grounds of sexual harassment may lodge a complaint

with the Industrial Relations Department against her employer on the ground of constructive

dismissal via section 20 of the Industrial Relations Act 1967. The burden is on the claimant to

prove sexual harassment to the Industrial Court. The following are recent cases on sexual

harassment in the workplace as decided by the Industrial Court of Malaysia.

Tong Yong Industries Sdn Bhd v. Tan Song Poh - Award No.: 432 of 2011.

The claimant was a general manager in the company and was subsequently dismissed on the

following grounds:

(i) lowering the morale of the existing staff in the company resulting in the

unnecessary resignation of several employees,

(ii) giving instructions that resulted in the segregation of staff between departments

thereby causing a decrease in overall productivity,

(iii) failing to adhere to customers’ requirements/instructions, and

(iv) sexual harassment.

A domestic inquiry was held, and the claimant was dismissed without compensation. The claimant

charged that he was dismissed without just cause and excuse. The Industrial Court found that the

domestic inquiry held by the company was conducted in violation of the rules of natural justice

and that the respondent failed to provide details and of the allegations against the claimant such as

the time and place of the alleged offence. Hence the Industrial Court held that the claimant was

dismissed without just cause and excuse. The court was of the view that reinstatement of the

claimant in this company was not a suitable remedy because of the strained relationship between
the two parties and ordered compensation in lieu of reinstatement and back-wages as remedies for

the claimant10.

Mohd Nasir Deraman v Sistem Televisyen Malaysia Berhad (TV3) - Award No.: 480 of 2010

The claimant was an executive broadcast journalist for TV3 (“the company”). He was accused of

sexually harassing a practical trainee of the company, Ong Vincci (“the victim”) who alleged that

he laid his head on her lap despite her protests and rejection while travelling to Port Dickson to

produce a programme. The victim also claimed that the claimant made sucking sounds at her and,

while looking at her breasts, asked if he could bite them. The claimant admitted that he laid his

head on the lap of the victim and that it was done with the consent of the victim. He also contended

that he had the habit of making sucking sounds due to a small hole or space in between his front

teeth and that he did not make such sounds with any malicious intention towards the victim. About

the utterance of the words “biting of breasts” he said that it was a general joke among them in the

car. After perusing the evidence and statements of witnesses, the Industrial Court held that the

victim’s story was more reliable and corroborated by independent evidence. The court held that,

“The Claimant’s defense is a bare denial of the wrong doing and a blatant lie and not acceptable

at all.”

Ahmad Ibrahim Dato Seri Mohd Ghazau v. August land Hotel Sdn Bhd - Award No.: 1460

of 2010

The claimant’s employment was terminated on the grounds that he had sexually harassed the

cashier in the F&B Department by touching her lips and smacking her buttocks twice without her

will and consent. However, no contemporaneous complaint was made, and no substantive evidence

10
(Tong Yong Industries Sdn Bhd v. Tan Song Poh 2011)
of this accusation adduced at trail. As such, the court failed to establish on the balance of

probabilities that the claimant’s dismissal from employment was with just cause and excuse. The

Industrial Court opined that,

“A charge of sexual harassment brings upon the once accused the potential
prospect of enormous but underserved embarrassment and substantial damage
not only to the accused’s professional standing but also to his social and personal
reputation as well, if perchance the claim is grounded upon mendacious
accusations.”
Since sexual harassment is a very serious accusation it must be corroborated by independent

evidence. The Industrial Court awarded the claimant compensation in lieu of reinstatement and

back-wages11.

6) Conclusion

The above cases demonstrate that any allegation of sexual harassment requires concrete evidence

to support it. The onus to prove is on the accuser and it is not an easy burden to discharge. That is

the reason why Parliament enacted the amendment in the Employment Act 1955 to allow cases of

sexual harassment to be first dealt with at the workplace. Only after the employer fails to discharge

its duty in acting at the workplace can a complainant proceed with a legal suit under section 20 of

the Industrial Relations Act 1967. The impact of sexual harassment is serious and can cause much

physical and physiological distress to employees and unnecessary tension at the workplace. There

is a need for safe and conducive working environments for working women. Prior to the

amendments to the Employment Act 1955, the Malaysian legal system did not provide clear

protection to workers from sexual harassment. The current Employment (Amendment) Act 2012

incorporates important provisions in Malaysian law against sexual harassment. The act’s Part XVA

11
(Ahmad Ibrahim Dato Seri Mohd Ghazau v. August land Hotel Sdn Bhd 2010)
is a strong deterrent to sexual harassment at the workplace by making it illegal regardless of the

wage level of the employee. The new amendment states that employers must act against any

employee accused of sexual harassment based on any complaint made by a victim. Failure to

institute the action will be considered an offence committed by the employer. The Malaysian legal

system offers limited redress for sexual harassment complaints whether at the criminal, labor, or

administrative level. There is a need for the authorities to consider a separate act specifically to

deal with sexual harassment. While there is nothing that can guarantee protection from sexual

harassment including specific legislation, a specific and comprehensive act which deals directly

with such offences would contribute much to reduce such incidents and is the way forward to

promoting a more conducive workplace.

References

Ahmad Ibrahim Dato Seri Mohd Ghazau v. August land Hotel Sdn Bhd . 1460 (2010).
Bari, Abdul Aziz. Malaysian Constitution: A Critical Introduction . The Other Press, 2003.
Bhatt, J. K. "Sexual Harassment in the Workplace-Legal Redress for a Gendered." UITM Law Review,
2007: 33-54.
Lee, Kamal Halili Hassan & Yee Zing. "Sexual Harassment in the Workplace: Selected Court Cases and
New Legal Provisions in Malaysia." Asian Social Science, 2015 .
Magley, V. J., Hulin, C. L., Fitzgerald, L. F., & DeNardo, M. Magley, V. J., Hulin, C. L., Fitzgerald, L. F.,
& DeNardo, M. "Outcomes of self-labeling sexual harassment." Journal of Applied Psychology,
1999: 390-402.
Mohamed, A. A. A. Sexual harassment at the workplace in Malaysia. Kualalampur : CLJ publication, 2011.
Stanko, E. A. The Meanings of Violence. London, Routledge. London: Routledge, 2003.
Tong Yong Industries Sdn Bhd v. Tan Song Poh . 432 (2011).
Voydanoff, P. Work and Family Life. England: Saga Publications, Inc. Saga Publications, Inc. , 1987 .
Welsh, S. "Gender and sexual harassment." Annual Review of Socialogy, 1999: 169-190.