LEGAL RESPONSES TO SEXUAL HARASSMENT

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LEGAL RESPONSES TO SEXUAL HARASSMENT
Zarizana Abdul Aziz
2
Early Struggle
1939 Strike organised by Klang Indian
Association against sexual harassment of female
workers
1950 strike by rubber tappers of Panavan
Karupiah Estate
1987 Womens Section of Malaysian Trade Union
Congress study
1995 Beijing Platform of Action recognises
sexual harassment as violence against women and
calls on member states to take measures
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Current Legislations
Employment Act

• discusses minimum benefits e.g annual leave,
  overtime

• applies only to workers in private sectors

• advisory role

Industrial Relations Act

• union workers and collective agreements

• unlawful dismissal applies to union members
  and non-union members

4
Current Legislations (cont.)
Penal Code

• outraging modesty

• insulting modesty

• repetitive incidences

• burden of proof

• police case

Common Law Tort
5
Guidelines
Code of Practice on the Prevention and
Eradication of Sexual Harassment in the Workplace
1999

• result of discussions between Ministry of Human
  Resources, trade unions and womens groups

• first definitive document by Ministry to address
  sexual harassment at the workplace

• defines sexual harassment

• provides minimum guidelines

• workshops to promote code

• not compulsory slightly over 1 trained / adopt

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Research on Implementation of Code

• AWAM conducted research in 2001 led by Dr
  Cecilia Ng

• Research conducted at 6 pioneer companies which
  adopted and implemented the Code

• To gauge extent of sexual harassment at the
  workplace

• To assess perceptions of sexual harassment

• To review progress of implementation of Code

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Research Findings
Experienced one or more forms of sexual harassment
38.8
36.9
34.2
23.2
with the kind permission of Dr Cecilia Ng
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Research Findings (cont.)
Experienced one or more forms of sexual harassment
with the kind permission of Dr Cecilia Ng
21.2
8.5
9.8
6.9
9.5
1.3
1.1
9.4
A Language, B Physical contact, C Comments on
the body, D Harassing calls , E Display
suggestive objects, F Non-verbal messages, G
Sexily dressed women, H Blackmailed into sexual
relations
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Research Findings (cont.)
Impact of Sexual Harassment
with the kind permission of Dr Cecilia Ng
11.2
20.2
8.4
25.3
58.4
26.4
A Threatened Personal Security, B Intimidating
Working Environment, C Hostile Working
Environment, D Offensive Working Environment,
E Threatened Employment Opportunities,
F No Impact
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Research Findings (cont.)
Impact of Code of Practice

• More management level respondents were aware of
  or trained in sexual harassment policy

• Only 47.6 of respondents were aware of sexual
  harassment policy

• Companies with policy claimed it discouraged
  sexual harassment

• Only 2 complaints lodged

• In contrast in-depth interview revealed large
  numbers of unreported incidences

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Research Finding (cont.)
Sharing Channels by Respondent and Sexual
Harassment Victims
A Colleague BSupervisor, C HR, D Family,
E Friends, F Union G Police, H Counsellor,
I MOHR, J Doctor, K Nobody
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Summary of Implementation of Code

• Not all recommendations of Ministry adhered to

• Employers and victims unsure of processes

• Lack of detailed processes resulted in
  non-uniformity of procedures and features

• Lack of counseling facilities

• Lack of measures to protect complainant

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WHY LEGISLATE?
Present Position
- Code definitive - sends clear message sexual
harassment unacceptable
- Victims come forward to complain
- Employers do not take action code voluntary
- Authorities only has jurisdiction under
unlawful dismissal of workers
- Victims seek assistance from NGOs and
political parties / media
- Victims lodge police report
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WHY LEGISLATE?
Purpose of Legislation
Establish boundaries of acceptable behaviour
Effective and Accessible Remedy
Prevention of Sexual Harassment
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WHY LEGISLATE?
Widen protection of persons against sexual
harassment

• Expand persons protected contractors,
  apprentice, civil servants, volunteers,
  educational institutions

• Expand meaning of workplaces

• Allows action to be taken where victim and
  harassment employed by different employers

• Allows action to be taken where harasser is
  customer / supplier / client of victim

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WHY LEGISLATE?
Preventive Measures

• Compels employers to take preventive measures

• Establish a committee to monitor policy and its
  effectiveness

• Ensure wide dissemination of policy

• Effective preventive strategy - more effective
  than after-the-fact legal redress

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WHY LEGISLATE?
Internal Redress Mechanism

• Provide detailed fair just and transparent
  processes

• Protects employers when taking action normal
  grievance procedures not applicable

• Ensures accessible complaint procedures to
  encourage victims to come forward

• Encourages in-house resolution where possible

• Provides immediate action to stop further sexual
  harassment

• Prohibits victimisation

• Counseling of victims and harassers

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WHY LEGISLATE?
External Redress Mechanism
Appoint public officer

• formulate policies and guidelines

• encourage conciliation of complaints, where
  possible

• attend to complaints involving non-worker /
  workers of different employers

Establish tribunal to hear and decide on
complaints
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WHY LEGISLATE?

• Vicarious liability of employers if no
  reasonable steps / precaution taken

• Offences false reporting, impeding
  investigations / hearing

• Non-disclosure of identity

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T H A N K Y O U