Sexual Harassment in the Workplace – Part One

Sexual Harassment in the Workplace – Part One 1

Sexual harassment is a polemic topic of late amongst Malaysians. The issue of sexual harassment at the workplace started to gain major public attention in the year 1997 when Lilian Tehereta de Cosa made a complaint against her Managing Director. The hotel Director claimed to be dismissed unfairly by Jennico Associates Sdn Bhd after she had made a complaint against her MD who had sexually harassed her.

Sexual Harassment in the Workplace – Part One
Ashikin Abd Rahim
Legal Adviser
MECA Employers Consulting Agency Sdn Bhd

What is the meaning of sexual harassment? If we refer to the legislations in Malaysia specifically the Employment Act which defines sexual harassment as “any unwanted conduct of sexual nature directed by a person which is offensive or humiliating or is a threat, arising out and in the course of his employment”. Moreover, Article 4 of the Malaysian Code of Practice (Prevention and Eradication of Sexual Harassment at Workplace, 2000) defines it as any form of sexual favours where submission to it is made explicitly or implicitly and it interferes with one’s job.

The implication of the definition provided by the Act is that the words “unwanted conduct of sexual nature” can be interpreted as the conduct of sexual nature which may not be considered as sexual harassment if the recipient gives consent. Besides that, any act committed by an individual that is made towards several employees in a group and if such comments or jokes are in sexual forms, then it will not be considered as a sexual harassment. This is because the act done is not targeted to a specific person but a group at large. An act which is sexual in nature shall constitute as a sexual harassment if the act is done to a specific individual intentionally and the victim has rejected it impliedly or explicitly. Therefore, any forms of harassment made by an employer against an employee or another employee against an employer which are sexual in nature shall also be deemed as sexual harassment even if it happens outside the office or workplace. For example, such acts which occur outside the workplace during work related social functions or when in the course of traveling for work and others that are listed as per Article 6 of the Malaysian Code of Practice.

Looking back at the efforts made by the government in handling sexual harassment issues at the workplace in terms of the law, rules and regulations, there has been developments in the past few years. Besides the Amendment of the EA 1995 in the year 2012 and the introduction of the Malaysia Code of Practice in the year 1999, the Penal Code provides a general provision too, under Section 509 of the Penal Code. In fact, the Labour Department has made it mandatory for all organisations to have the Sexual Harassment Policy as part of the EA 1995 compliance.

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