Sexual Harassment

 What is Sexual Harassment?

Sexual harassment refers to an unwanted or unwelcome conduct that is sexual in nature, and may be committed physically, verbally, non-verbally, psychologically and/ or visually, which can or may cause the person being harassed to feel humiliated, offended or threatened.


Sexual harassment can be perceived as a spectrum. On the lower end of the spectrum would be conduct that is generally considered benign such as cat-calling whereas on the other end, you will find severe acts of aggression and harassment such as aggravated stalking, sexual assault and rape.

At present in Malaysia, the only acknowledged form of Sexual Harassment is listed under the Employment Act. This relates to Sexual Harassment at the Workplace. Several forms of Sexual Harassment (including Sexual Assault) is criminalized under the Penal Code.

Forms of Sexual Harassment

There are various forms of Sexual Harassment:
Physical, Verbal, Nonverbal, Visual, Psychological, Online.

Online Harassment or Cyber Harassment


Online sexual harassment 
– or sexual cyberharassment – refers to threatening or harassing messages disseminated via emails, instant messaging services, social media platforms or other digital materials that are posted online. It usually targets a specific person either through direct contact or by the act or threat of disseminating personal information or materials that causes distress, fear, and/ or anger.

Cyberstalking is an exaggerated form of online sexual harassment, involving the use of electronic means to monitor or stalk a person unlawfully,threateningly or maliciously.


To know more about your legal options, call our helpline at 03-7877-0224.

REPORT TO MCMC

Types of Sexual Harassment

Coercion

It refers to any unwanted conduct of a sexual nature which occurs when one is pressured, tricked, threatened or forced into receiving said conduct. What must be distinguished here is that the person being sexually harassed is being coerced in a non-physical way into receiving the harassment. In some countries, this is also known as Quid Pro Quo.

A real life example, a tertiary student was being compelled by a lecturer to ‘go out with him‘ in exchange for financial assistance given by the university. The lecturer in questions was in charge of endorsing or recommending student beneficiaries.

In this instance, it is clear that the sexual harasser’s (the lecturer) method of securing the survivor’s (the student) agreement – not consent, as consent cannot be given under duress – was not physical in nature even if the act he was proposing (‘go out with him’) could be or lead to an act of a sexual nature.

Annoyance

It refers to any unwanted conduct that is directly or indirectly of a sexual nature and creates an environment that is offensive, hostile or intimidating as perceived by the the other party. Sexual annoyance often results in a disruption to the other party’s day-to-day routine or activities as a s result of a hostile or intimidating environment.

An example of this would where a security guard asks a person out everyday despite repetitive rejections. The security guard then goes on to create situations where they are constantly dodging the person’s footsteps – and even goes so far as to leave love letters on the person’s windscreen. The situation makes the person feel very alarmed and is worried for her safety. The situation compels her to come to office later than usual or leave office early to avoid running into the security guard. It has affected her work performance and satisfaction. This person is now thinking of leaving her job in order to escape said security guard.

Here, it is clear that the person receiving the security guard’s attentions find it disturbing, alarming and that creates a hostile environment where the peron feels unsafe. This has resulted in the person making dramatic changes to her life in order to avoid or end the unwanted conduct of the security guard.

Sexual Assault

Sexual assault is any type of unwanted or inappropriate conduct of a sexual nature that happens through force, threat of force or creates an atmosphere of hostility and or intimidation. In certain cases, rape can be considered to be part of an extended incident of sexual assault.

This offence is contained in the Penal Code (Kanun Keseksaan) and it is  a CRIME.

Sexual Harassment at the Workplace

Sexual Harassment at the workplace is covered under Part 16 of the Employment Act – and not under the Penal Code. This is important to note because as you will see below, the obligation to handle sexual harassment cases at the workplace is placed on the employer.

Section 2 of the Employment Act, states that “―sexual harassment means 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”.

As mentioned earlier, employers have a duty to investigate a sexual harassment complaint under Section 81B (1) unless an investigation into the complaint had been made before which yielded no findings, or that the employer believes that the complainant has made a vexatious complaint (the exceptions are listed under S81B (3).  NOTE: If you need help with this, please call our helpline so that we can give you the information that is most relevant to your circumstances.   

As we can see below, under Section 81C and 81F, the employer must conduct an inquiry, and upon receiving the results of the enquiry, take adequate as listed under S. 81F.

Others

A few minor forms of sexual harassment (in public spaces) can also be found in the Penal Code (Kanun Keseksaan). This means that it is a CRIME and you can lodge a report with the police.

Sex Discrimination

There are occasions where it is easy to get Sex Discrimination mixed up with Sexual Harassment – and this is usually because the impact on the survivor is the same – distress, humiliation, and intimidation. However, the reporting process and handling process is very different.

Sex Discrimination  refers to discrimination on the basis of a person’s sex or gender identity. For example, companies who do not promote women unfairly is considered to commit sex discrimination.

Sex Discrimination Harassment  can include Sexual Harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. However, this is not a requirement. For example, offensive remarks about a person’s sex is sufficient.

While simple teasing, offhand comments, or isolated incidents that are not very serious, it is considered harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

It is against our very constitution to discriminate a person on the basis of gender. Article 8(2) of the Federal Constitution protects the Right to Equality and against discrimination regardless of religion, race, descent, place of birth or gender for all citizens.

 CASE STUDY 
In the case Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun & Others, a person who had accepted the offer to be a temporary teacher at a government school. The moment the employer knew that she was pregnant , the employer voided the offer. Noorfadilla appealed to the court for interests, damages and costs. The parties who were being sued included the officer, Federal Government, Education Minister and Education Director General. According to the Malaysia’s obligation under the Convention of the Elimination of all forms of Discrimination Against Women (CEDAW) , this case comprises of direct discrimination which uses pregnancy to stop women from working and indirect discrimination whereby men and women are not treated equally. 

It is important to note that discrimination in the workplace while on the basis of gender can be rationalized on the part of the employer on technical grounds. It is worthwhile to explore the Industrial Relations Act 1967 to see your unique circumstance is protected under this act. NOTE: If you need help with this, please call our helpline so that we can give you the information that is most relevant to your circumstances.   

Sources:
[1] https://www.womenshealth.gov/relationships-and-safety/sexual-assault-and-rape/sexual-assault
[2] https://www.forensicnotes.com/workplace-sexual-harassment/
[3] https://hbr.org/2018/06/its-not-always-clear-what-constitutes-sexual-harassment-use-this-tool-to-navigate-the-gray-areas
[4] https://privacyrights.org/consumer-guides/online-harassment-cyberstalking
https://www.eeoc.gov/laws/types/sex.cfm