Workplace sexual harassment becomes a trending topic again when Employment (Amendment) Bill and Anti-Sexual Harassment Bill were both passed by the Dewan Rakyat recently. It is unfortunate that many people have misconceptions about sexual harassment at work, making it difficult for employers to meet their legal obligation to keep the workplace safe and investigate the complaints of workplace sexual harassment.
Before getting further, what constitutes sexual harassment? It is defined in the Employment Act 1955 (EA 1955) as “any unwanted conduct of a sexual nature, whether verbal, nonverbal, 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.”
MYTH 1: Sexual harassment in the workplace is rare
TRUTH: Sadly, sexual harassment is prevalent at work. A survey conducted by the Women’s Aid Organisation in the year 2020 showed that 62% out of the 1,010 Malaysian women surveyed reported that they experienced sexual harassment in their workplace. This means 6 in 10 women are sexually harassed either by their supervisor, colleagues, vendors or even clients. This number is worrying as we have yet to include sexual harassment faced by men in the workplace.
MYTH 2: Only young pretty women will be the targets and the perpetrator will only be men
TRUTH: Anyone can get sexually harassed – regardless of gender, age, physical appearance, sexual orientation or marital status. The root cause of sexual harassment is the abuse of power or power imbalance. Those who are more powerful harass and intimidate those who are less powerful. Regardless of gender, it is possible for women to harass men, or for men to harass other men. Many instances are reported where female employees touch male colleagues under the guise of being friendly or in a joking manner, in which the male employees are actually not comfortable with the unwanted physical interaction. Other than that, sexual harassment and abuse of power against foreign workers remain hidden and largely underreported as their complaints were normally ignored by employers.
MYTH 3: Sexual harassment is not a big deal, it’s just flirting
TRUTH: Sexual harassment is a form of discrimination and normally involves abuse of power by someone with more power controlling or threatening another individual. It can also involve unwelcome sexual advances – hugging, groping, making sexual gestures or dirty talk, but that does not mean that it has any relation to romance. It can even escalate to quid pro quo sexual harassment where the more powerful individual forces the victim to offer sex in exchange for recruitment, promotion, salary raise or projects and threatens to demote, cut the salary or even dismissal if the victim says no. These unwanted sexual advances may cause physical or psychological damage to the affected individual. What about the company’s reputation? It is unavoidable that the company would be affected as the public would deem that it is tolerating sexual harassment as part of the corporate culture.
MYTH 4: If the harasser does not do it intentionally, then it does not constitute sexual harassment
TRUTH: In determining whether a behaviour is constituted as sexual harassment, the motive of the harasser does not matter here, as long as the victim feels uncomfortable, offended, humiliated or intimidated by any conduct of the harasser. If the victim has the reason to believe that her/his resistance may lead to an unfavourable consequence for her/his employment, it can be deemed as workplace sexual harassment. For example, sending your colleague, vendor, or client a GIF or Meme that is sexual in nature thinking that it would be funny, may still constitute sexual harassment if he/she feels uncomfortable with the content despite the fact that you have no such intention.
MYTH 5: The infamous remark: “the victims deserved it because of their outfits and behaviours”
TRUTH: This is rhetoric of victim-blaming. Sexual harassment occurs not because of the victims’ dressing, behaviour or personality; the culprit is the harasser. Victims should not be blamed for the harassers’ actions. Their dressing and behaviour are not a statement of consent, even if they have “TOUCH ME” printed on their shirts. Maintaining a nice body figure does not indicate they want to be sexually harassed. The level of modesty an individual is perceived to have is irrelevant to their clothing preference or behaviour. Bear in mind that predators are not looking for attractive prey, but looking for weak prey so that they can easily get what they want. Even if the preys dress as Iron Man, the layers will be stripped.
MYTH 6: Most sexual harassment allegations are falsely made as revenge
TRUTH: It is undeniable that such circumstances may exist, but this does not negate the fact that sexual harassment underreporting remains disproportionately high. Sometimes, a sexual harassment complaint may be concluded as “unproven” due to a lack of corroborating evidence, but it does not mean that it is a false allegation.
The burdens on employers to deal with sexual harassment in the workplace do not reduce with the passing of the Anti-Sexual Harassment Bill and the establishment of the special tribunal. Employers will be required to give full cooperation when there is any sexual harassment complaint made in relation to its employees.
It is a good sign that our society is raising awareness of sexual awareness in the workplace, but employers still need to be mindful that a lack of understanding of sexual harassment among employees may lead to more concerns, especially when people are not able to differentiate between sexual harassment and unprofessional or inappropriate conduct.
Therefore, it is strongly recommended for employers to ensure their employees clearly understand the boundaries and consequences of sexual harassment in the workplace, which can be achieved by having a clear comprehensive sexual harassment policy. Additionally, employers can consider themed awareness campaigns, special sessions during company events, workshops and continuous education on sexual harassment.