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Sexual Harassment

CODE OF PRACTICE ON THE PREVENTION ANDERADICATION OF SEXUAL HARASSMENT IN THEWORKPLACE

Kementerian Sumber ManusiaLaunched August, 1999

FOREWORD

(Excerpts from the Keynote Address of Y.B. Dato' Lim Ah Lek,Minister of Human Resources, Malaysia at the official opening of the National Workshop On Sexual Harassment In TheWorkplace on 1 March 1999 at Kuala Lumpur)

Surveys carried out in a number of industrialized countriesshowed that the proportions of female employees who had beensubjected to sexual harassment in those countries ranged from42 to 70 per cent. There may be no conclusive research findings on the incidence of sexualharassment in this country, but we are very sure that the problem does exist at least in certainworkplaces especially those with large female workforce, and we are convinced that thesituation already warrants due attention and remedial action so that it does not get worse.

There is ample evidence everywhere that a high percentage of sexual harassment casesoccurring in the workplace goes unreported. Due to embarrassment, helplessness and fear of being ridiculed or, worse still, of losing their jobs, most of the victims of sexual harassmentwere prevented from raising the problem and therefore had to suffer in silence.

In Malaysia the unfortunate victims are presently facing distressing constraints to reportsexual harassment because there is no established procedure to guide them how and whereto report. At the enterprise level, very few employers have so far provided complaints or grievance procedure for reporting sexual harassment.

Sexual harassment is one of the most offensive and demeaning experiences an employeecan suffer. For the victims, it often produces feelings of revulsion, disgust, anger, andhelplessness. It damages the victim's health. It results in emotional and physical stress andstress-related illnesses. Victims may experience severe emotional trauma, anxiety,nervousness, depression and feelings of low self-esteem.

Sexual harassment adversely affects employee morale and job performance. It reducesproductivity and increases the rate of sick leave and absenteeism among affected employees.Moreover, many female employees who face sexual harassment choose to resign from their jobs rather than fight or endure the offensive conditions. This results in a higher rate of employee turnover with all the associated costs in training and lost production. The greatestdanger of sexual harassment is that when it goes unchecked it can spread throughout anorganization like an infectious disease.

It has also been found that unchecked sexual harassment in the workplace createsintimidating, hostile and offensive work environment which can adversely affect the industrialrelations climate in the organization. An employer who ignores or condones sexualharassment in this establishment may also expose himself to legal action by

the aggrieved employee who has been subjected to the harassment. Sexual harassment inthe workplace is also an employment-related safety and health problem.

By requiring a person to exchange sexual favours for economic survival, sexual harassmentdenigrates the victims and relegates them to a second-class status in the workplace. Viewed

from this angle, sexual harassment is a gender discrimination which goes against theprinciple of equality of treatment in employment between the genders. Therefore, it inhibitsthe growth of a caring and just society. It also undermines the policy of the government toincrease participation rate of the women in the labour force.

There are many others adverse consequences of sexual harassment in the workplace, butwhat I have mention earlier would suffice to show the potential harm it could bring about.More and more developed and developing countries have embarked on specific nationalprogrammes aimed at preventing and eradicating sexual harassment in the workplace.Malaysia needs to have such national programme to ensure that our workplaces are free fromoffensive and intimidating environment caused by the spread sexual harassment.

Sexual harassment problem arises out of general workplace relationships involving personalbehavior of people within the enterprise. Therefore, the most effective way of dealing with theproblem is to tackle it at the level of the enterprise so that it can be confronted on the spot andnipped in the bud. Based on experiences in others countries which have successfullyimplemented anti-sexual harassment programmes, the best approach to combat sexualharassment at work is through the establishment of preventive and redress mechanism at theenterprise level.

Since this popular approach has proven to be the most effective in other countries, a decisionhas been that this approach will form the basis of our national policy and practice in dealingwith sexual harassment at work. In this regard, I am pleased to announce that The Ministry of Human Resources will prepare and issue a Code of Practice On The Prevention AndEradication of Sexual Harassment In The Workplace which will contain guidelines on theestablishment and implementation of in-house preventive and redress mechanism for dealingwith sexual harassment at the enterprise level.

The purpose of the Code of Practice is to provide practical guidance to employers,employees, trade unions and others relevant parties on the protection of the dignity of menand women at work. The aim is to ensure that sexual harassment does not occur and, if itdoes occur, to ensure that adequate procedures are available to deal with the problem andprevent its recurrence. The Code thus seeks to encourage the development andimplementation of policies and practices which will ensure a safe and healthy workingenvironment in every place of employment where individual employees, irrespective of statusor position, are treated with dignity and free from any form of harassment, humiliation andintimidation of a sexual nature.

Employers should accept and implement the Code of Practice in the spirit of discharging their corporate and social responsibility to prevent and eradicate sexual harassment in theworkplace. A workplace free from sexual harassment is a condition of work which employeesof either gender are entitled to expect. Social justice demands a fair treatment of allemployees and due respect for their human dignity and the existence of sexual harassment isa denial of a fundamental principle of social justice.

Employees and their trade unions have a clear role to play in helping to create a climate atwork which is free from sexual harassment. Employees can do much to discourage sexualharassment by making it clear that they regard such behaviour unwelcome and unacceptable.Trade unions should co-operate with employees in carrying out promotional and educationalprogrammes for the employees and in the implementation of in-house mechanism to preventand eradicate sexual harassment in the workplace. The inclusion of specific clauses onsexual harassment in collective agreements as a means of dealing with the problem jointlybetween the employers and the trade unions has become a common practice in theindustrialized countries. Such practice should be encouraged in this country.

AIM

1. The aim of this Code of Practice is to provide guidelines to employers on the establishment

of in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment inthe workplace.

RATIONALE

2. Sexual harassment problem arises out of general workplace relationships involvingpersonal behaviour of people within the enterprise. Therefore, the most effective way of dealing with the problem is to tackle it at workplace itself so that it can be confronted on thespot and nipped in the bud.

3. The best approach to combat sexual harassment in the workplace is through theestablishment of preventive and redress mechanism at the enterprise level. A decision hasbeen made that this approach will form the basis of our national policy and practice in dealingwith sexual harassment in the workplace.

MEANING OF SEXUAL HARASSMENT

4. For the purpose of this Code, 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 condition of asexual nature on her/his employment.

(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.

5. Based on the definition in article 4 above, sexual harassment may be divided intocategories, namely sexual coercion and sexual annoyance.

(i) Sexual coercion is sexual harassment that result in some direct consequence to thevictim's employment. An example of sexual harassment of this coercive kind is where asuperior, who has the power over salary and promotion, attempts to coerce a subordinate togrant sexual favours. If the subordinate accedes to the superior's sexual solicitation, jobbenefits will follow. Conversely, if the subordinate refuses, job benefits are denied.

(ii) Sexual annoyance, the second type of sexual harassment, is sexually-related conduct thatis 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 whichthe recipient has to tolerate in order to continue working. A sexual harassment by anemployee against a co-employee falls into this category. Similarly, harassment by acompany's client against an employee also falls into this category.

6. Within the context of this Code, sexual harassment in the workplace includes anyemployment-related sexual harassment occurring outside the workplace as a result of employment responsibilities or employment relationships. Situations under which suchemployment-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.