SEXUAL HARASSMENT AT THE WORKPLACE

Legal Updates from YHA Law Firm

In brief

Repeatedly calling a person “sweetie” and flirting with colleagues are acts that are frowned upon in a professional work environment. However, do these acts actually amount to sexual harassment? In this post, we’ll look at what constitutes sexual harassment in the eyes of the law, as well as how to handle sexual harassment accusations.

Definition of ‘Sexual Harassment’

Sexual harassment is defined 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 section 2 of the Employment Act 1955 (EA 1955) .
The following are some examples that could fall within the EA 1955 definition;

a) When your colleague does not consent to your touches such as holding a colleague’s waist or hand or thighs.

b) Stalking your coworker in the carpark.

c) Continue to persuade your coworker to go on a date with you despite several rejections.

There was no specific legislation to address sexual harassment (aside from the general provisions in the Penal Code) prior to the amendment of the Employment Act 1955 (“Act”), and we were reliant on the Code of Practice and the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“Code”) as a guideline for employees to protect themselves and for employers to provide appropriate recourse.

Who may file a sexual harassment complaint?

‘Complaint of sexual harassment,’ as defined in S.81A of the EA 1955, includes any complaint pertaining to sexual harassment made:(i) by an employee against another employee; (ii) by an employee against the employer; or (iii) by an employer against an employee.
In addition sexual harassment is further divided into two categories by the Code of Practice: “sexual coercion” and “sexual annoyance,” which, in short, means:

a) Sexual coercion occurs when a sexual harassment act or behaviour has a direct impact on the victim’s work. A situation where a superior threatens to deprive a subordinate of employment benefits if the subordinate refuses the superior’s request for a date is an example of sexual coercion.

Q. My boss has been harassing me to go on a date with him after work, threatening to deny me a promotion if I don’t. Is this seen as a kind of sexual harassment?

A. Yes, the scenario stated above obviously qualifies as sexual harassment. This scenario may be seen on social media or elsewhere almost every day, when employees are harassed by their employers at work, and some have even been threatened by them. For example, if your employer has been persistently embarrassing and disrupting your workplace with his sexual jokes, or if he has repeatedly asked you to go on dates with him despite your repeated rejections.

b) Sexual annoyance occurs where the sexually-related conduct is offensive, hostile and/or intimidating to the recipient, but nonetheless has no direct link to any job benefits. This definition also extends to sexually-related conduct by the company’s clients towards employees. An example of sexual annoyance includes a situation where a colleague constantly makes suggestive and offensive sexual remarks to another colleague of similar rank.

How will allegations of sexual harassment be handled?

Section 81D of the EA 1955 requires employers to investigate any sexual harassment complaint received within 30 days of receipt. However, an employer may decline to investigate a sexual harassment complaint if the issue has previously been investigated and no sexual harassment has been shown, or if the employer believes the complaint is frivolous, vexatious, or not presented in good faith. Within 30 days of receiving the complaint, the employer must notify the complainant in writing of the refusal to investigate the allegation of sexual harassment, as well as the reasons for the refusal.
If you are unsatisfied with your employer’s conclusions, you may request a review from the Director General of the Labour Department (“Director General”). Once brought to the Director General’s attention, the employer may be asked to reinvestigate the complaint and must give a report to the Director General within 30 days.

Q. What actions will be taken if my employer believes that sexual harassment has been proven?

A. Here’s some good news: if the harasser is found guilty by their employer, he will be fired without notice, demoted, or subjected to a lower punishment than those listed above, as the employer judges reasonable and appropriate, or suspended without pay for a term of no more than two weeks.

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