Examine what constitutes sexual harassment and explain the various forms of sexual

harassment

Sexual harassment by definition is unwelcome sexual advances, requests for sexual

favours, and other verbal or physical conduct of a sexual nature when :

Submission to such conduct is made either explicitly or implicitly a term or

condition of an individuals employment, or
Submission to or rejection of such conduct by an individual is used as a basis
for employment decisions affecting such individual, or
Such conduct has the purpose or effect of unreasonably interfering with an
individuals work performance or creating an intimidating, hostile, or
offensive working environment.

Unwelcome behaviour is the critical word. Unwelcome does not mean involuntary.
A victim may consent or agree to certain conduct and actively participate in it even though it
is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person
subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a
date, sex-oriented comment, or joke depends on all the circumstances.

In Malaysia, under Code of Practice on the Prevention and Eradication of Sexual

Harassment in the Workplace, sexual harassment means :

Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal,
visual, psychological or physical harassment :

i) that might, on reasonable grounds, be perceived by the recipient as placing a

conditionof a sexual nature on her/his employment.

or

ii) that might, on reasonable grounds, be perceived by the recipient as an offence

humiliation, or a threat to her/his well-being, but has no direct link to her/his employment.
based on the definition in the code above, sexual harassment may be divided into categories,
namely sexual coercion and sexual annoyance.

i) Sexual Coercion

Sexual harassment that result in some direct consequence to the victims

employment. An example of sexual harassment of this coercive kind is where a superior, who
has the power over salary and promotion, attempts to coerce a subordinate to grant sexual
favours. If the subordinate accedes to the superiors sexual solicitation, job benefits will
follow. Conversely, if the subordinate refuses, jobs benefits are denied

ii) Sexual Annoyance

Sexually-related conduct that is offensive, hostile or intimidating to the

recipient, but nonetheless has no direct link to any job benefit. However, the annoying
conduct creates a bothersome working environment which the recipient has to tolerate in
order to continue working. A sexual harassment by an employee against a co-employee falls
into this category. Similarly, harassment by a companys client against an employee also falls
into this category.

Within the context of this code, sexual harassment in the workplace includes any
employment-related sexual harassment occurring outside the workplace as a result of
employment responsibilities or employment relationships. Situations under which such
employment-related sexual harassment may take place includes, but is not limited to :

i. at work-related social functions;

ii. in the course of work assignment outside the workplace;
iii. at work-related conferences or training sessions;
iv. during work-related travel
v. over the phone; and
vi. through electronic media
It is essential to emphasize that sexual harassment refers to sexual conducts which is
unwanted and unwelcome to the recipient. It is also a sexual conduct which is imposed on
and unsolicited or unreciprocated by the recipient.

VARIOUS FORMS OF SEXUAL HARASSMENT

Sexual harassment encompasses various conducts of a sexual nature which can

manifest themselves in five possible forms, namely;

i. Verbal harassment
verbal harassment is defined as the excessive use of language to undermine
someones dignity and security through insults or humiliation, in a sudden or
repeated manner.
The following are a few examples :
abuse kiddings
crude remarks mockery
hooting sounds
inappropriate jokes swearing
jesting teasing

ii. Non-verbal sexual harassment

Gestures or non-verbal behaviours might also be considered sexual harassment
where they are persistent, severe, and offensive.
examples may include :
Sexual looks and lewd gestures
licking lips
hand signal
persistent flirting

iii. Visual Harassment

Visual conduct of a sexual nature that is severe or pervasive and affects
working conditions or creates a hostile work environment.
Examples may include :
 showing pornographic materials
drawing sex-based sketches
writing sex-based letters

iv. Psychological harassment

Vexatious behaviour that manifests itself in the form of conduct, verbal
comments, actions or gestures: that are hostile or unwanted that affect the
employees dignity or psychological or physical integrity.
for example :
repeated unwanted social invitations, relentless proposals for dates or physical
intimacy

v. Physical Harassment
Threatening or bullying someone with physical gestures. For example :
inappropriate touching, patting, pinching, hugging, kissing, fondling, sexual
assault
The Former Human Resource Minister, Datuk Dr. S. Subramaniam, wanted sexual
harassment in the workplace to be incorporated into the Employment Act 1955.

We will define sexual harassment, what an employer should do in such circumstances, his or
her responsibilities as well as the legal consequences to be faced by the employer and the
offender,

In our opinion, Sexual Harassment in the workplace for the time being should be
incorporated into the Employment Act 1955. We do agree with our former Human Resource
Ministers suggestion. But, in the near future, We would like to suggest that Specific Sexual
Harassment Act should be incorporate.

The Malaysia Employment Act 1955 is applied to Peninsular Malaysia and Labuan.
For Sabah and Sarawak, they are governed by their respective Labour Ordinance. The main
sources of employment law are legislation, subsidiary legislation and case law. In instances
where local case law does not address an issue, case law from commonwealth countries
especially the United Kingdom is persuasive.

So, when sexual harassment in the workplace is incorporated in the Employment Act
1955, the employees and employers feels that there are more protected than before.
Previously by using Code of Practice on the Prevention and Eradication of Sexual
Harassment in the Workplace, when an employee filing a complaint to the employer, a in-
house inquiry is only needed to be done. Most of the time, the employers does not bother
about the complaints and finally, the employees will take his own decision. Usually they are
quitting from the job.

By incorporating sexual harassment in the workplace into the Employment Act 1955,
legislative action can be taken by an employee to another employee or employer and vice
versa. Eventhough The Revised of Employment Act 1955 (2012 revision) sees that additional
of Part XVA Sexual Harassment has been included in the Act, it is still need more
improvement. The additional part 81A until 81G is only about the betterment from the Code
of Practice where the Director General had given the Power to instruct the employer to do in
house inquiry. Failing to do so, an employer is committing an offence and shall, on
conviction, be liable to a fine not exceeding ten thousand ringgit.
 The Revision of the act should include of a condition where employee /employer can
sue or be sued in court. By doing this, everybody will be more serious in combating sexual
harassment in the workplace in Malaysia.

We should follow foreign countries on how they dealt with this matter. United States
for example, They have Laws, Regulations, Guidance and MOUs on Sexual Harassment in
the Workplace. U.S. Equal Employment Opportunity Commission was set up in order to deal
with any kind of sexual harassment as been mentioned before. In Australia, they have
Australian Human Rights Commission which any a person can file a complain about sexual
harassment and it is incorporated under the Sex Discrimination Act which was revised in
2011.

It is timely for Malaysia to have a specific Sexual Harassment Act instead of

additional clause in Employment Act because the problem is getting serious but no specific
attention given to this matter. Public awareness through campaign , mass media and social
media should be more aggressive. Public participation in NGOs must be encouraged in order
to have a better understanding about how serious this matter is.