4 May, 2017
Brickfields Asia College (“BAC”) recently made headlines for the wrong reasons after one of its students posted a “rape joke” in a private Whatsapp group. The matter went viral after a screenshot of the conversation made its way to the target of the rape joke, and she posted it on social media.
The “joke” in question?
“She gonna kena rape from me. Then she must marry me.”
BAC suspended the student and assigned him to 100 hours of community service, but it was still criticized on social media for its handling of the matter, after the target of the joke alleged that she was pressured to remove her postings on social media about the incident. BAC has denied the allegations. The target of the joke has since said that she is “glad that they heard about my dissatisfaction and took a step in the right direction and not sweep it under the mat.”
Even though this matter involved college students, this incident is a reminder of how the handling of sexual harassment complaints is not only a legal issue – it can be a PR issue for companies and employers.
So what is sexual harassment?
Sexual harassment is conduct of a sexual nature that is imposed on and is unsolicited or unreciprocated by the recipient. As employers have an obligation to provide a working environment that is safe and conductive, sexual harassment is a misconduct that may warrant termination.
The most obvious example of sexual harassment is in the form of an unwanted physical act: touching, patting, pinching, stroking, hugging, kissing and etc.
Some people may ask : can a “rape joke” such as the one in this case amount to sexual harassment? Although most generally view the term of “sexual harassment” to signify physical acts of harassment, the law recognizes other forms of sexual harassment to an individual as well.
The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (Sexual Harassment Code) introduced in 1999 considers the following as forms of sexual harassment:
- Verbal Harassment
- Gestural Harassment
- Visual Harassment
- Psychological Harassment
Despite the categorization, there is no exhaustive list of to what amounts to sexual harassment and every case will have to be taken individually based on its facts. However, case law may shed light on how other forms of actions or conduct can be deemed as harassment.
Verbal Harassment
Making sexually suggestive comments through jokes, jesting, kidding, sounds and questioning are classified as a form of sexual harassment.
In Aznan harun v Maybank [2015] 3 MELR 231, the Court held that it was fair to terminate an employee who had been making sexually suggestive and inappropriate comments to his co-workers.
However, whether a comment amounts to sexual harassment depends on the perspective of the intended victim and its perpetrator. Can forwarding a crude, sexual joke amount to sexual harassment? In R. Jesudaa Raghavan v St. Microelectronics Sdn Bhd [2013] 1 MELRU 11, the Courts have laid down several factors to consider on in determining whether a comment can be deemed as sexual harassment:
- Whether the recipient gave a negative reaction to the comment or action;
- The working environment where it was conveyed;
- Whether the act or comment is seen to have any sexual connotation or different meaning (double entendre);
- The relationship between the recipient and the perpetrator.
In Yahya Mat Wazir v Petroliam Nasional Berhad [2015] 2 MELR 614, the Claimant was held to have committed sexual harassment by text messages and making inappropriate statements to colleagues such as “I don’t plan to marry another one but you can never know … nafsu lelaki satu, nafsu perempuan banyak […] you know la nafsu lelaki itu apa?”. The Court held that the Claimant’s comments were sexual in nature and created a hostile working environment which the victim had to tolerate in order to continue working.
Gestural Harassment
Non-verbal conduct is also listed as another form of sexual harassment. It could include making gestures or facial expressions with a sexual nature, ogling and staring in a sexually suggestive manner, whistling or making sexually suggestive sounds.
In Kamarul Zaman Bin Mamat v Nippon Wiper Blade (M) Sdn Bhd [2013] MELRU 1, the Claimant was dismissed as he had given remarks of a sexual nature to a colleague. He said “Marilah duduk sini” (“Come sit here”) with the his hands on his thighs, and ogled his colleague with suggestive overtones denoting persistent flirting.
In Berjaya Redang Beach Resort Sdn Bhd v R. Samikannoo Rajoo [2014] 1 MELR 584, the act of unzipping one’s trousers in front of a female colleague and sticking out his tongue in a lewd suggestive manner were classified as sexual harassment.
Visual Harassment
Acts such as showing pornographic materials, photographs of naked and scantily clad women, drawing sex-based sketches, writing sex-based letters to other employees are among the various examples of what may constitute visual sexual harassment.
Psychological harassment
Examples would be repeated unwanted social invitations; relentless proposals for dates or physical intimacy. In Fuchs Petrolube (Malaysia) Sdn Bhd v Chan Puck Lin @ Chan Pak Nean [2003] 3 ILR 845, persistent phone calls calling one for lunch invitations and even sending a card with improper words were held to have been seen as sexual harassment.
Commentary
Sexual harassment is vile act which demeans and humiliates its victim. As such, the law does not provide an exhaustive list as to what amounts to sexual harassment, so as to cater for all types of harassments. As part of the growing recognition to the seriousness of this issue, the Federal Court has also recently introduced the tort of sexual harassment into the Malaysian legal landscape, which means victims of sexual harassment can now sue their harassers for damages.
We may still have some way to go. As recent as 2012, we have an Industrial Court case referring with approval to the book “A Guide to Malaysia Code of Practice on Sexual Harassment in the Workplace“, which takes the view that the following actions are not sexual harassment:
When he gives you a social hug-kiss and does the same to everyone else.
When he tells a naughty joke which is rather amusing.
if he wants to date you and he is single, but you decline.
Putting aside the “legal” aspect of the issue – we should also consider as a society what kind of example we want to set for the future generation. Normalising or excusing inappropriate behaviour (even behaviour that may not necessarily cross the legal threshold into sexual harassment), or blaming the victim is not the way forward. Society as a whole will benefit if all of us are able to live and work in a respectful environment.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
