Sexual Harassment in Malaysia
The incidence of sexual harassment in the workplace is increasing in Malaysia, as demonstrated by recent incidents involving well-known companies. BFM 89.9 took action against two employees following an internal investigation, while the Federal Court ruled in favor of a sexual harassment lawsuit involving Tabung Haji. Additionally, Sime Darby revisited a previously withdrawn complaint, and a 27-year-old lawyer also recently filed a harassment lawsuit against her former firm.
Reputational Damage & Costly
According to a 2019 report by Deloitte Australia, the costs of sexual harassment for businesses were $ 2.6 billion in lost productivity, $ 249.6 million in lost wellbeing, and approximately $ 0.9 billion in other costs. Additionally, a study by Harvard Business Review (2018) revealed that a single sexual harassment claim can be enough to dramatically tank your brand’s public image and elicit perceptions of structural unfairness. This suggests that companies need to be responsive and pro-active when it comes to sexual harassment claims, which not only benefits alleged victims, but the public image as well as the financial health of companies as well.
Relevant Laws & Employers Legal Obligation
There are generally 3 main legislations governing sexual harassment; (i) Employment Act (EA) 1955, (ii) The Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace, and (iii) Anti Sexual Harassment Act 2022. Essentially, all three legislations can be summarised as defining sexual harassment as; Sexual harassment is 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”. Thus, there are 3 main elements:
Types of Sexual Harassment
(i) Verbal: Asking, insinuating or suggesting any sexual activity as a condition of someone’s employment, promotion or treatment.
(ii) Physical: Inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing and fondling.
(iii) Visual: Display of pornographic or sexually suggestive materials such as articles, letters, pictures or sketches.
(iv) Gestural: Leering or ogling with suggestive overtones such as licking lips, eating food provocatively or hand signal denoting sexual activity.
Prevention, Reporting and Investigation
There are several notable difficulties when it comes to harassment cases such as:
- The subjective nature of sexual harassment;
- The difficulty in providing solid evidence or eyewitness testimony; and
- The time gap between the incidents and their reporting. Many cases remain unreported for extended periods due to various personal reasons experienced by the victims, such as embarrassment, fear of adverse publicity, threats, lack of confidence, economic dependence on their job, and more.
According to the EA 1955, employers are required to:
- Prominently display a notice to raise awareness about sexual harassment in the workplace.
- Investigate complaints in accordance with the Employment Act of 1955.
Note: Failure to comply with the EA 1955 can result in a penalty of up to RM50,000.
Handling Sexual Harassment Complaints at the Workplace:
Incidents of Sexual Harassment
Step 1: Formal complaint filed to HR by the victim (*keep all evidence)
Step 2: HR Complaint Center registers the case.
Step 3: HR urges relevant departments and the victim’s immediate supervisors to prevent the potential continuation of harassment acts (separate both parties at the workplace and prevent encounters).
Step 4: HR begins to collect evidence + Conduct Preliminary Investigations
Step 5: Commence Disciplinary Process (Show Cause Letter +Letter of Explanation)
- Perpetrator Admits Guilty – Move to Step 7
- Perpetrator Admits Not Guilty – Move to Next Step
Step 6: Commence Domestic Inquiry
- Guilty – Move to Step 7
- Not Guilty
- Due to insufficient evidence
- False Allegations (difficult to establish and only with concrete evidence) – Move to Step 7
Step 7: The company imposes punishment on the offending employee (Warning, demotion, transfer, dismissal, etc.).
Step 8: HR to file the final investigation results and all supporting documents for safekeeping as evidence.
Empathy vs Accountability
The manager’s dilemma in confronting sexual harassment lies in finding the delicate balance between empathy and accountability. While empathy helps managers support victims and create a safe space for them to share their experiences, accountability ensures that appropriate actions are taken to address the issue effectively. By combining these two elements, managers can navigate these difficult situations with compassion, fairness, and a commitment to creating a workplace free from sexual harassment.
By Gayathri Sivananthan
Consultant, MECA
