Sexual Harassment In The Workplace

• Published date: 15 December 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Law Firm: MahWengKwai & Associates
• Author: Ms Diana Cheak, Sue Ann Wong and Celinne Teh

Repeatedly calling a person "sayang" 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 a survey by Women's Aid Organisation, 62% out of the 1,010 Malaysian women surveyed reported that they experienced some form of sexual harassment in their workplace.¹ The #MeToo Movement, a movement intended to encourage people of all genders to speak out on their sexual harassment encounters, has been gaining momentum in Malaysia with employees increasingly using social media to speak up about their sexual harassment in their workplaces.

It is no longer an option for employers to be ignorant of allegations of sexual harassment occurring in the workplace. In this article, we explore what amounts to sexual harassment in the eyes of the law and how sexual harassment complaints should be managed.

What is sexual harassment based on the Employment Act 1955?

Sexual harassment is defined in the Employment Act 1955 ("EA 1955") as "any unwanted conduct of a sexual nature, whether verbal, nonverbal, 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."

The following are examples which may come within the definition in the EA 1955:

• Making indecent or derogatory jokes about a colleague of the same/opposite gender;
• Touching a colleague's thighs; and
• Constantly asking a colleague out on a date despite being rejected multiple times.

Who can make a sexual harassment complaint?

Under Section 81A of the EA 1955, anyone can make a sexual harassment complaint, whether it is:

1. by an employee against another employee;
2. by an employee against any employer; or
3. by an employer against an employee.

What amounts to sexual harassment?

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999

The Ministry of Human Resources published a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999 ("Code of Practice") as a guide for both employers and employees alike. The 1999 Code of Practice has been widely referred to by the courts when interpreting whether a conduct amounts to sexual harassment. The definition of sexual harassment in the Code of Practice is similar to the definition under the EA 1955. It provides that sexual harassment amounts to:

"Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment;

1. that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
2. that might, on reasonable grounds be perceived by the recipient as an offence or humiliation, or a threat to her/his well-being but has no direct link to...