Sexual harassment is an unwelcome behavior that invokes a sense of anger, making a person feel they have been violated resulting in a questioning of their self-worth. It is one of the ways discrimination in the workplace arises. The Star online had reported, that over a third of Malaysian women, or 36%, have experienced sexual harassment, compared to one in six men.

Why is sexual harassment discriminatory? According to the general recommendations adopted by the Committee on the Convention on the Elimination of Discrimination Against Women (CEDAW), gender-based violence is a form of discrimination. Article 11 of the CEDAW convention provides that equality in employment can be seriously impaired when women are subjected to gender-based violence, such as sexual harassment in the workplace.

Domestically this is reflected in section 2 of the Employment Act 1955. The act defines sexual harassment 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”. Although, acts like teasing or ungracious comments are not protected by the law, it may be upsetting to women and therefore substantiate claims of discrimination.  

In the Industrial court case, Tajinderjeet Singh A/L Harcharn Singh v QS Solutions Sdn.Bhd (201 of 2020), the employer’s response to sexual harassment at the workplace came under scrutiny by the court. An employee had targeted and sexually harassed other female employees in that company. The court held that the employee’s termination was justified as his actions affected the daily performances of those he harassed.

A female colleague was so traumatized at the sight of the claimant, that she would signal her friends at work for help. Another witness when confronted by him felt so anxious and scared she needed to be escorted to the pantry and toilet area, for fear she might bump into the claimant alone. Yet another witness testified how close the claimant would stand next to her to the extent, the smell of cigarettes and warm breath assaulted her senses.

He would additionally talk to a female co-worker about the things he did when he spent the weekend, such as making out in his car with his lady friends; parading the information as if it were a prized trophy, making the former feel uncomfortable.

Notably the court acknowledged that the, claimant made negative comments in relation to the women in his company by addressing them as, ‘tak boleh pakai’ in translation, ‘useless’. This suggests sexual harassment does not only have to be directed at a particular person, but it can be directed to women, as a group.

RECOMMENDATIONS

Having an effective policy together with anti-harassment training for all staff; regardless of their ranks can assist in preventing harassment. While this may be the first step towards promoting a discrimination free workplace, it should be remembered that when enforcing policies, the burden of preventing sexual harassment lies on employers. Employers have a responsibility of providing a working environment that is harassment free. Furthermore, management must lead by example treating those, subordinate or of equal rank to them with courtesy and respect, mindful of potentially discriminatory behavior. 

Written by: Renuka Balasubramaniam and Samantha Vivian Gomez