This article first appeared in Forum, The Edge Malaysia Weekly on October 16, 2017 - October 22, 2017

Recent reports of high-profile sexual harassment victims in the US (the latest accusations being against Hollywood movie mogul Harvey Weinstein) speaking up about their experiences has once again shed light on a discomfiting issue, particularly for women, that is rarely reported or sees action taken.

A widely quoted survey in the US by Cosmopolitan magazine in 2015, of 2,235 full and part-time female employees aged 18 to 34, found that one in three women have experienced workplace sexual harassment at some point.

Because the workplace perpetrator is usually of a higher rank than the victim, they feel that assistance from within the organisation will not be forthcoming. They are reluctant to report the abuse because they fear retaliation, loss of career opportunities and wish to avoid dealing with the emotional and mental trauma that inevitably comes with a workplace inquiry. This, in turn, emboldens the perpetrators.

This was most infamously documented in the testimony of Anita Hill in Senate confirmation hearings for Supreme Court nominee Clarence Thomas, whom Hill had accused of sexual harassment when she worked for him in the Equal Employment Opportunities Commission. In the wake of recent reports of women commencing and winning lawsuits against senior and even high-profile male colleagues, Hill told 

USA Today, “We have a whole host of people accepting that as just something men do, as opposed to understanding it as predatory behaviour that is not only immoral but is also illegal.”

In Malaysia, there are no specific laws on sexual harassment. Instead, an act of sexual harassment can be prosecuted under Section 509 of the Malaysian Penal Code. Under Section 509, it is a crime to intentionally insult the modesty of another person, whether through uttering words, making gestures and/or sounds.

The Ministry of Human Resources has issued a Code of Practice to employers, which is aimed at preventing and eradicating sexual harassment in the workplace. Unfortunately, the code is merely a guideline for employers and does not have the force of law. Section 81F of the Employment Act places an obligation on employers to inquire into complaints of sexual harassment whether committed by other employees, the employer, or a third party.

The reluctance to speak up and to formally report is testament to the fact that the perpetrators are not sufficiently discouraged. To remedy this, we need to consider why victims fear speaking up.

Why aren’t they reporting it and what can be done?

Going back to the 2015 Cosmopolitan survey, only 29% of the women stated that they had reported sexual harassment incidents. Of this, only 15% felt that their report had been handled fairly. A qualitative study of 31 women in predominantly masculine industries by Harvard Business Review (HBR) also saw that sexual harassment continues to be a problem for women, with some saying that it is a cost of being attractive, and few spoke up for themselves or for others. The HBR interviews found that three potential reasons why women find it difficult to speak up about sexual harassment include fear of retaliation, the bystander effect and a masculine culture that permits sexual harassment.

In most cases, perpetrators will only commit these acts where there are no other witnesses. What can employers do to encourage victims to step forward to provide a detailed account? One way would be to implement and rigorously enforce an anti-retaliation policy. A clearly defined policy that guarantees that there will be no retaliation, coupled with as objective as possible enforcement, would no doubt increase the level of workplace safety and confidence. Clear procedures on how complaints are to be made and action taken need to be implemented, and there ought to a hotline and a relevant contact person to assist victims.

A key factor to encourage victims to report is awareness of what constitutes sexual harassment. Even now, some organisations are patriarchal and there is less understanding that certain remarks and inappropriate comments amount to sexual harassment. Case law indicates that whether or not an act amounts to sexual harassment depends on the impact it has on the victim.

Organisations must, therefore, carry out regular training sessions that will help send a clear message to all employees that the organisation views any and all acts of harassment very seriously, and the consequences will be severe.

Are victims helpless in the face of the law?

While Malaysian law does not yet for provide for compensation to sexual harassment victims, the Federal Court recently ruled in favour of the victim in the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016]. Asmah had filed a complaint of sexual harassment against Mohd Ridzwan, who was her workplace superior.

Mohd Ridzwan had allegedly uttered several vulgar words to her. Following an internal investigation, Mohd Ridzwan was not terminated from employment but was issued a strong reprimand by the organisation’s human resources department. Mohd Ridzwan then proceeded to file a claim for defamation against Asmah, who in turn brought a counterclaim for sexual harassment.

For the first time, Malaysian law recognised the tort of sexual harassment. The Federal Court found in favour of Asmah in her counterclaim, and she was awarded general damages amounting to RM100,000 and a further RM20,000 as aggravated and exemplary damages.

The Federal Court concluded: “Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional well-being. Perpetrators who go unpunished will continue intimating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment”.

This landmark decision is greatly welcomed. This new legal avenue, together with employers implementing measures to ensure a safe work environment, should result in greater awareness, fewer sexual harassment claims and an increase in the level of mutual respect within and outside the workplace.

As Hill points out: “I think we view sexual harassment as an individual behaviour problem. But what we are starting to really understand is that the problems are institutional.” Thus, rather than only looking to institutional changes to bring about change, all of us need to realise that we play a significant role in being more vigilant, vocal and supportive. Only then can sexual harassment be significantly reduced.

Woo Wei Kwang† was a partner in the employment practice of Wong & Partners, a member of Baker McKenzie International (†Passed away on Oct 10, 2017). Shameen Mohd Haaziq Pillay is an associate with the same practice.

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's AppStore and Androids' Google Play.