Misconduct Behaviour: Harassment and Discrimination

Introduction

Improper or inappropriate employee behavior or misconduct occurs at workplace

construed as workplace misconduct behaviour. The level of misconduct or

inappropriate behaviour be categorized as minor offence such as absenteeism to a

major offence such as insubordination, sexual harassment and intimidation. These has

mutually exclusively affect the co-workers, their environment as well as their

productivity. The determination whether such conduct be minor or major depends on

organizations’ rules and regulation as well as its Code of Conduct applied to all workers.

The example of misconduct behaviour may be in the form of breach of confidentiality,

absenteeism, insubordination, sexual harassment, bullying and unethical relationship.

Certain types of misconduct can be mitigate through training, confrontation and

reprimand but some major misconduct might revert to immediate suspension and

termination of service.

Misconduct behaviour may take in the form of confidentiality breaches such as leaking

organization secrets to competitors and business rival, insubordination whereby

employees disagree to follow orders and fulfill their duties, theft, unethical relationships

like having an affair in workplace which eludes to favoritism and discrimination such as

bullying and sexual harassment as well discrimination and intimidation. Other

misconduct might arise from stressor that affect their presence to workplace such as

stress and burnout.

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Managing misconduct behaviour is crucial to manage the reputation of the organization.

Sexual harassment at work place is a serious offence violating the rules and procedures

as well as crossing the private freedom of other workers and safety violation.

2. Name of the misconduct behaviour.

Harassment is a strong words describing violence, abuse and torture to the individual

victims of such harassment. These misconduct behaviour such as abuse may take in

various form and shape and sometimes might be hidden. Harassment and bullying

comprises of verbal and non-verbal harassment. It also includes visual and physical

elements also. The misconduct behaviour such as physical violence bullying of course

leading and creating negative work environments. Physically such as might cause harm

and mental torture to the victim. Adverse effect of harassment and abuse can

contributed to the physical and psychologically state of inconvenience. In some cases

this can lead to loss of dignity and confidence. Mental related disorder such as

depressions, anxiety, stress, reduced productivity, injuries and suicide and other forms

of death.

According to Mujtaba (2020), repeated and persistent attempt of harassment connotes

in tormenting individual state of mind with the intention of witnessing wear down,

frustrate, or get a reaction from another person is a common traits of a harasser. To

illustrate the common traits of this behaviour, the right terms be used is persistent

provoker. This type of individual persistently provokes, pressures, frightens, intimidates

or otherwise cause discomfort in another person. Furthermore, repeated exposure to

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this kind of intimidation would resulted into mental disturbance and can lead to in depth

depression. When victims mental is down, it also affected his character and productivity.

According to The Department of Safety and Health (DOSH) Malaysia, any act of ,

forming an abuse, threatening, assaulting or any negative behaviour in circumstances

related to their work may be include as harassment and violence. Abusing the right of a

foreign workers such as accommodation and pay would also be linked to human

trafficking. Offence under section 13 of the Employment Act 2012 illustrated that

trafficking in persons by means of threat, force, etc. is defined as: “Any person, who

traffics in persons not being a child, for the purpose of exploitation, by one or more of

the following means: (a) threat; (b) use of force or other forms of coercion; (c)

abduction; (d) fraud;(e) deception;(f) abuse of power; (g) abuse of the position of

vulnerability of a person to an act of trafficking in persons; or (h) the giving or receiving

of payments or benefits to obtain the consent of a person having control over the

trafficked person, commits an offence and shall, on conviction, be punished with

imprisonment for a term not less than three years but not exceeding twenty years, and

shall also be liable to fine.” Sexual Harassment

In Malaysia, sexual harassment is covered by the Employment (Amendment) Act 2012,

Sections 81A to 81G. Sexual harassment is defined in the Act as: “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.” According to the Code of Conduct

on the Prevention and Eradication of Sexual Harassment in the Workplace, it

encourages employers to establish a comprehensive in-house mechanism at the

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enterprise level to prevent, handle and eradicate sexual harassment in the workplace.

Zillman (2017) documented that more than half of American women or 54% have

experienced “inappropriate sexual moves” at some point in their career. Similarly,

another survey, reported in 2015, observed that one in every three women, between the

ages of 18-34, in USA experienced sexual harassment at work in the US setting at

some point in their career (Vagianos, 2015).

In matters related to sexual harrasment under the Code of Conduct by the Ministry of

Human Resource Malaysia (2020), sexual harassment refer to the meaning of any

unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual,

psychological or physical harassment of which it might, on reasonable grounds, be

perceived by the recipient as placing a condition of a sexual nature on her/his

employment. In addition it refers also to the condition of that might, on reasonable

grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her

well-being, but has no direct link to her/his employment.

Based on the definition, sexual harassment may be divided into two categories, namely

sexual coercion and sexual annoyance.

Sexual coercion is sexual harassment that results in some direct consequence to the

victim's employment. An example of sexual harassment of this coercive kind is where a

superior, who has the power over salary and promotion, attempts to coercive kind is

where a superior, who Code of Practice on the Prevention and Eradication of Sexual

Harassment in the Workplace Launched August, 1999 has the power over salary and

promotion, attempts to coerce a subordinate to grant sexual favours. If the subordinate

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accedes to the superior's sexual solicitation, job benefits will follow. Conversely, if the

subordinate refuses, job benefits are denied.

Sexual annoyance is the second type of sexual harassment, is 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 company's client against an employee also falls into this category. 6.

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 responsibilities or employment relationship.

Situations under which such employment-related sexual harassment may take place

includes, but is not limited to at work-related social functions, in the course of work

assignments outside the workplace, at work-related conferences or training sessions,

during work-related travel, over the phone and through electronic media.

In a nutshell, it is necessary to emphasize that sexual harassment refers to sexual

conduct 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.

3. Explain the characteristics of the misconduct behaviour.

The act of harassing usually being described as harsh, no emotions, aggressive and

non-civilized kind of action. Sexual harassment for example, can consist of repeated or

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singular acts that cause the victim(s) to feel uncomfortable and unsafe. The

characteristic of sexual harassment may take in the form of verbal, visual and physical.

3.1 Verbal

Sexual Harassment refers to sexually suggestive remarks, or obscene or insulting

sounds. It includes unwelcome and offensive names or terms of endearment such as

‘honey bun’ or ‘bunny buns’. Other examples of sexual harassment include cat calls,

kissing sounds, howling and smacking lips, unwanted sexual teasing, jokes, remarks, or

questions and referring to an adult as a girl, hunk, doll, babe, or honey. The act of

whistling at someone also included in this form of harassment.

3.2 Visual

Sexual Harassment is an assault to the sense of sight where someone exposes his or

her private parts or repeatedly stares at another person’s body parts in a way that is

offensive or uncomfortable for that person. Being made to look at sexually explicit

images or being shown obscene sexual gestures may constitute sexual harassment.

Some examples of visual sexual harassment are obscene or unwanted sexual looks or

gestures, unwanted sexual illicit, letters, telephone calls, or materials of a sexual nature

3.3 Physical

Sexual harassment is the act of being brushed against, hugged, kissed or touched in

any way that is unwelcome and discomforting. It could also refer to being forced to

touch someone. Some examples of sexual harassment are actual or attempted rape or

sexual assault, pressure for sexual favours and touching private parts or leaning over,

cornering, or pinching. Even pressure for dates also under this category of harassment.

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According to Ellen (October 20, 2017), the traits of sexual harasser can be characterize

by four main domain:

i. The dark triad

The dark triad characteristics can be referred to narcissism, psychopathy, and

Machiavellianism. Being a narcissism, the individual character wouldn’t care much on

sexual harassment on other individual. Some may think it as jokes without any intention

but some believe it is his or her deserve rights. This traits is a quite notorious kind of

traits as it deprived the privacy and justify chronic misconduct behaviour. The second

terminology refers to psychopath type of individual. The definition revolves around two

things that is fearless dominance and aggressive impulsivity. Fearless dominance

means no fear of doing things without limitation or boundary and manipulative in nature.

Aggressive impulsivity refers to antagonism and aggressive in principle of order and

command. In a nutshell, psychopaths can be described as aggressive, bold, firm,

manipulative exploiters and arrogant kind of behaviour. They are cold hearted individual

with no sympathy or empathy and free to do unto other what they think logic. However,

this kind of personnel are experts in mimicking to exploit victims. The intention and

desire to commit sexual harassment are implant in their mind to live with such

misconduct behaviour. They also known as opportunist who will act based on open

opportunity to execute embarrassed kind of sexual harassment.

Finally, Machiavellianism, named for the Italian Renaissance politician Niccolo

Machiavelli. This behaviour refers to the act or behaviour that are unscrupulous and

deceptive in nature towards any values with a long term ambition or goals at any cost.

In a nutshell, this such domain be considered as enthusiasm for exploitation, deception,

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and manipulation combined with a callous blindness to the feelings of others, all tied

together with a bow of grandiosity. In other words, a perfect recipe for sexual

harassment.

ii. Moral disengagement

Moral disengagement is a process where an individual worker or group of people

distances themselves from the normal or usual ethical standards of life. In the case of

moral disengagement, this kind of people justify their own corruption. It’s a cognitive

process by which individuals create their own version of reality. Instead, moral principles

were ignored by this kind of individual and their mindset would always pruned in

appreciating immoral values as their guiding principles in life.

Through moral disengagement, the individual harasser would be disrupted his improper

act and rest assured that what they do is right in a wrong morality. The thinking of a

harrier is adverse from normal thinking order from choosing a good behaviour instead a

bad ones as from the perspectives of moral disengagement, they chose their own

interpretation to justify their bad habits.

iii. Male-dominated working field

In a male dominated occupation like in the army, police and contractual workers, sexual

harassment is well-documented to be more prevalent in traditionally masculine fields.

Looking at personal attributes of male, the harassment in terms of intidimination and

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bullying treated as a custom in their own culture. Bullying is common in military as part

of ragging process to develop masculine traits on the juniors. This is also happen in a

high tech and the upper echelons of the entertainment industry.

iv. Attitudes towards women

The biasness towards gender in workplace still a common culture. This hostile

perception usually in the field of male or female dominated occupation. Although

psychology is a science, it hardly be an objective field in terms of gender quality

treatment. This is due to human factor which sometimes prune to biasness in any field

of work. Preference and favoritism will always prevail in the culture at all times.

According to a study revealed that most sexual harassers in this case refer to male

harasser on their behaviour had no idea that their advances were unwanted. They were

in the state on unconscious, clueless and lovelorn.

4. Factors contribute to misconduct behaviour.

The risk factors and their related motivator behind this obscene actions are heavily

related to the following:

i. Motivation and Enticement

The source of motivation usually derived from the variables which originate from the

victim. The act, the dressing and the behaviour of a victim may justify enticement of a

harasser towards them. For example, the attributes of physical attractiveness in terms

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of sexiness and the way they dress ought to motivate force for harassment and justify

for such act. Lust and desire thus be a tempted justification to warrant and establish

social or sexual relationships with their female co-workers, or give unwanted sexual

attention as women who are physically attractive will be more likely to experience

sexual harassment compared to those who are less attractive.

ii. Overcoming internal inhibitions against harassment

This motivator behind this factor refers to the values, such as morality and sympathy, of

the harasser. An individual with low moral values may not regard harassment as

seriously wrong or immoral, and thus feels uninhibited from sexually harassing

someone else. Hence the absence of good values could be a contributory factor to

sexual harassment.

iii. Overcoming external inhibitions against harassment

Several external factors present in the working environment could contribute to sexual

harassment in the workplace. These include silo or rivacy of workspace A working

environment with much privacy provides a greater opportunity for harassment since

their co-workers are less likely to witness the harassment (Mohd Nazari Ismail et al,

2007).

iv. Overcoming victim resistance

This factor refers to the ability of a victim to recognize and in turn stop any behavior

towards harassment. The related variables are sex-role and the job status of the victim.

The sex-role factor assesses the extent of masculinity or femininity of a victim based on

the traditional stereotyped masculine and feminine personality traits. Women who

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exhibit more of the feminine traits are expected to be subjected to more harassment

than those who fall under the masculine category.

5. How the company overcome that problems.

In order to overcome sexual harassment in the work place, the employers should

adhere to the legal procedures and implement strict employment procedures:

i. Embark of Employees Awareness

Awareness program objectives are mainly to inculcate awareness and precautionary

plan on safeguarding the welfare and safety of workers in an organization. This includes

explanation in general about sexual harassment or anything falls under the perimeter of

harassment such as discrimination, bullying and intimidation at the workplace , action

be taken in case there is such misconduct and how to lodged a report or complain

awareness, complaints and consequences.

ii. Raising and lodging report of misconduct

In case of misconduct behaviour occurs, the employees are guided on how the victims

shall go about raising complaints, whom to approach and knowing their right when

facing in such scenario.

iii. Creating a safer working environment

Making work place as safe from human hazard such as outline preventionary measures

to curb such act. Strict rules and regulations and disciplinary action taken.

iv. Anti Harrasment Policy

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Other precautionary plan that management can initiates is developing effective Anti-

harassment Policy

The anti-harassment policy entail all perspective related to harassment namely

specifyng who is protected under the policy, prescribing that sexual harassment will not

be tolerated and is unlawful under the Employment Act and legislation, probing that

harassment or victimization may lead to disciplinary action up to and including

dismissal, declaration of any aggravating factors, such as abuse of power over a more

junior staff, will be taken into account in deciding what disciplinary action to take,

defining the sexual harassment context with clear and provide clear examples and

illustrations of it. Examples should be relevant to your working environment and reflect

the diverse range of people that harassment may affect which include an effective

procedure for receiving and responding to complaints of harassment.

In addition, such policy should also include or address third-party harassment. This

section should explain clearly that third-party harassment (to the suppliers, vendors and

clients) can result in legal liability that it will not be tolerated. Encouragement for

reporting harassment to the management, necessary processes or what steps will be

taken to prevent it, and finally.

Evaluation on such policy must be conducted on regular basis to improve the content as

well as strengthening the action which reference to legal views and social interaction of

workers.

6. What type of training or courses to treat sexual harrasment

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The pro-activeness need to be in place prior to the happening of such incidents. It can

be done through formulating and planning activities to mitigate the matters clearly

6.1 Create awareness on harassment

Awareness program can assist the workers in the following ways such as the act of

curtailment of such behaviour which may be viewed as “sexual” and punishable. This

will enlighten the knowledge and expansion the horizon of awareness on the negativity

of such misconduct that is offensive an inappropriate in nature of human being.This is a

clear indication that amongst many men, there is a lack of awareness and a gap

amongst the understanding of men and women as to how various actions/gestures

could be viewed. For example, placing an arm around a woman could be taken as a

sexually intimidating gesture by the woman. When awareness is generated that certain

acts are those which could be termed as sexual harassment” males may desist from

such acts.

Awareness also includes on prevention action or next course of action to be taken

especially on how to react in such situations. In the unfortunate circumstances if such

an act/event occurs, the victim must know whom to complain to and what should be

his/her reaction. Such awareness would create an environment where the victim is

facilitated to speak fearlessly. This in turn would ring a bell of caution to stall/prevent

any other further such incidents.

On the perspective of employer, the employer also becomes aware of how to handle

such situations, how to design concrete policies and how to implement them. It helps in

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legal compliance. Employers must be aware that it is not just the aggressor who is liable

for punishment. If the victim can prove that the employer did not have the proper

mechanism in place to prevent and redress “Sexual Harassment” complaints, the

employer is also liable for punishment. Added to this would be the damage it could

cause to the reputation and goodwill of the company.

6.2 Enhancing Diversity Management

The freedom of the employee of today is much diversified in terms of channels of

reporting such incidents. The employee needs to move away from narrow, conservative

thinking to broader, inclusive mindsets. Whatever his personal views on gender, sexual

orientation, dressing etc., he cannot carry them to the workplace and endanger the

workplace. With more number of LGBT’s at the workplace, sensitization of employees is

very essential. We must learn to accept that our teams mate may be completely

different from us in various ways and stop being judgmental. Therefore, training

regarding diversity must include anti “Sexual Harassment” training. Teasing or ridiculing

people because they are transgender, lesbians or gays are viewed as acts of “Sexual

Harassment” globally.

Diversity and “Sexual Harassment” training must go hand in hand to build inclusive

organization as both are inter-related to each other in various ways.

6.3 Complaint Bureau in Managing Complaints

One initiatives as required under the Employment Act is the mediation of establishing

Internal Complain Committee to hear such sexual or any harassment case in

organization. This is the body which is supposed to receive and handle the complaints

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from the woman and conduct enquiries according to the norms laid down in the Act as

well as the company policy. Any organization having ten or more employees must have

an Internal Complaint Committee (ICC) which has been set up by the employer. The

names of these members have to be prominently displayed at prominent places of the

organizations. The ICC usually constitutes of a chairperson, who is a senior employee

in the organization, other employees a male or female who have knowledge of the law

and are committed to the cause of women and one representatives of an external

member from an NGO or any woman who is passionate about the cause of women. As

evinced from the case at Novasoft technologies in India due to the absence of a

Complaints Committee or an ICC violates the fundamental right of the woman to a free

and fair working place. (Ms. G v. ISG Novasoft Technologies Ltd. Madras High Court

(Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463 of 2012),

(Indiankanoon.org, 2019). The victim was awarded a sum of R.1.68 crores in damages

because the company had not constituted a Complaint Committee in line with the

Vishaka Judgement.

6.4 Promotional and Educational Programs

Prevention is the most effective tool and employer can use to eradicate sexual

harassment in the workplace. Preventive action activities includes amongst other

communication, education and training. Developing a corporate policy and preventive

mechanism on sexual harassment is not sufficient if it not followed by the act of

dissemination of the policy and mechanism among the employees and supervisors in

the area of sexual harassment. Furtherance, to the need for communication, the

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employer should provide a programs by which employees and supervisors could be

educated in the area of sexual harassment by sharing thought and experience. The

employer should also provide special training sessions for supervisory and managerial

staff to train them to recognize potential problems and learn how to deal with them as

and when they arise. The necessity to provide training is much greater for those who

are assigned to function as investigators and counselors.

7. How employees response.

Retaliation, aggressive remarks and silence are common types of reaction coming out

from the employees. According to Carly McCann et al, (n.d), firing and dismissal are

common measures taken to mitigate the problems of harassment in workplace. Their

analysis shows that sexual harassment is no exception to this pattern. Sixty-eight

percent of sexual harassment allegations include a charge of employer retaliation in the

face of a discrimination complaint. Almost two-thirds of those filing sexual harassment

charges report in return having losing their jobs as a result of their complaint.  High

instances of job loss and retaliation are present across ethnic, race and sex categories.

The reaction of employers’ in response to retaliation is considered as hard and

inhumane. Furtherance, those who complaint might face charges of insubordination by

the upper class of management. There are very low proportion of employees who file

sexual harassment complaints. This is due to fear that they finally been accused of such

action and retaliation that lead to punitive reaction by employers.

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According to a research, usually white men and women are more likely to lose their jobs

than are other colored ethnic or race. In contrast, based on the research, black female

are less likely to lose their job. The act of filing a sexual harassment discrimination

charge usually fall on deaf ears as most of the actor are the management themselves.

Most of cases are therefore swept under the carpet or hidden.

8. What the company can get benefits to overcome harassment?

The successful in overcoming harassment within the organization can improve and

strengthening the professional relationships between employees as well as employers.

This mutual respect can further elevates the image of organization as responsible

employers thus maintaining high reputation and corporate image.

In addition, the successful in preventing such misbehavior would prevent unnecessary

problems to the organization. The work place will be turned as a peaceful mind to work

in as all necessary aspect have been safeguarded in terms of sexual and other

harrasment that might occur in the future.

Thirdly, the properly handling of such misconduct would definitely reflects the integrity

and professionalism on the management in overcoming harassment issues accordingly.

9. What the employees get benefit from free harassment.

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The benefit of having a free of violence and harassment at working place are best

illustrated in the condition of working that is free from any unwanted sexual, physical,

psychological disturbance that might affect mental and physical wellbeing of workers.

The workers can focus on their work and employment in a peace of mind thus

increasing their productivity towards achieving the aspirations of the organization.

10 Recommendation and suggestion.

In probing into the sexual harassment or any intimidating act of harrasment, the

management most probably emphasize on eliminating work place mobbing. Workplace

mobbing is the act of bullying others in the work environment; and, such actions are

negative, continuous, and tend to intensify over time (Ågotnes, Einarsen, Hetland, &

Skogstad, 2018). Mobbing is not a conflict that occurs in a single incidence, and it can

have many forms and types. Mobbing and workplace bullying can include professional,

emotional, verbal, and physical abuses coming in downward, upward, inward, and

horizontal forms. Downward mobbing or bullying is when powerful persons of authority,

such as managers and supervisor, are using the power the organization has bestowed

upon them, to exert their position power over their employees in a negative or

intimidating manner (Vandekerckhove & Commers, 2003). There are also situations

where a group of employees band together to go against their boss or superior, and this

is considered upward bullying. In certain industries, such as education or even

healthcare, bullying can be inward, initiated by students, customers, clients, vendors,

patients, or even the patient’s families, as they develop a relationship over time and the

employee may feel helpless as the patient exudes power over them. Horizontal bullying

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is a case when a group of employees working together harasses another co-worker,

and neither has formal power over each other (De Cieri, Sheehan, Donohue, Shea, &

Cooper, 2019).

The issues of sexual harassments is relatively sensitive in nature as it involves integrity

and values of an individual. Another important points are the malicious fact as a

weapons to undermine of affect the other individuals’ reputation due to grievance or

political motive. Therefore a tactful manner should be given attention to solve the issue:

10.1 Handling Complaints Sensitively

The management in tackling such matters must be consciously clear and trained to look

into all complaints and maters referred to them objectively and sensitively. Probing

incidents, asking questions, and trying to gather more information about reported

incidents require a lot of tact and skill. Bias and judgmental stances do a lot of damage

and can weaken the protective social fabric of the organization.

Facts must be gathered without taking sides or as neutral as it can be. The drivers

behind all factual gathering is none other than empathy not sympathy.

10.2 Handling Malicious Complaints

Not all complaints are genuine in nature. Some might have a twist in between with a

hidden motive. The flip side to strict policy implementation to deal with acts of “Sexual

Harassment” is that it also attracts malicious complaints. Such complaints are filed with

a mala fide intent to discredit and harm a person, even portraying a negative and false

fact just to tarnish the image of individuals. Office politics is just an example of climbing

up the career at the expense of others.

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10.3 Stern Action on Malicious Complaint

If the complaint turn out to be malicious, a stern action against the complainer shall be

taken effect. This is to prohibit malicious act from being spread out across the

organization. The management shall take a firm decision as to terminate and expel

individual with malicious character to safeguard the reputation of organization.

11. Conclusion.

Harassment in any form serve a nuisance that against the privacy of individual workers.

It has an adverse impact in intriguing into someone’s emotional as well physical

wellbeing. Sexual harassment remains a persistent and serious threat to women and

men in workplaces. While the vast majority of those who experience sexual harassment

in the workplace never report this harassment internally nor file a formal discrimination

charge, those who do are typically confronted by harsh outcomes. Any forms of

intimidation being it bullying, sexual or other intimidation of biasness should be stopped

as the matter encroaches to the human right of being a rationale human being.

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https://www.ilo.org/dyn/travail/docs/1627/CODE%20OF%20PRACTICE%20ON%

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