Excuse me, but I think you are so cute! Malaysia must set a high standard of conduct at the workplace and implement the proposed Sexual Harassment Bill
by Prema Devaraj
Is this sexual harassment? It may be true to say that most of us have an idea that there is such a thing as sexual harassment, but perhaps few of us would be able to define with any confidence what it is exactly. What may be playful banter to one person may be unwelcome comments to another. Isn’t it all too subjective? A fuss about nothing? Well, it certainly isn’t a fuss about nothing. Thousands of women and men suffer sexual harassment, with many of them suffering severe emotional and physical consequences. This is as true of Malaysia as it is elsewhere. Indeed, there is a campaign going on at the moment in this country for the Government to enact legislation to make sexual harassment a punishable offence. In other words, it is possible to define it, and there are many countries and states that have been able to do so. Let us look a little more closely at some of the issues. What is sexual harassment? While there is no one definitive definition, sexual harassment has generally been acknowledged as comprising unwanted and unwelcome sexual conduct, approaches, innuendoes and so on, which can result in a hostile and intimidating (working) environment. It can be a single or repeated occurrence. It should be noted that many initiatives in both defining sexual harassment and taking remedial actions have concentrated on the workplace, a fact that holds true for initiatives in Malaysia too. In this country, there is, at present, a voluntary Code of Practice on the Prevention of Sexual Harassment In The Workplace, overseen by the Ministry of Human Resources (MOHR). This code defines sexual harassment as “various conducts of a sexual nature that arise out of workplace relationships and include verbal, non-verbal, psychological or physical forms of harassment.” Why does sexual harassment occur? Like other forms of abuse, sexual harassment is inextricably linked to the abuse of power. It is not mere banter when a person uses his or her superior position to harass, intimidate and humiliate another person. It is intolerable. Of course, there are various explanations and excuses for sexual harassment. These include the claim that men are biologically programmed to be sexual aggressors, the observation that the cultural structure of patriarchy gives men social, political and economic power over women and the argument that the workplace is traditionally male so women cannot expect men to change their cultural behavior in the workplace. Yet most harassers hold key or strategic decision-making positions and are therefore able to exercise their power over subordinates. And while women are more likely to be harassed because most positions of authority are held by men, men are also sexually harassed. Once we understand the contexts and causes of sexual harassment, we can appreciate the need for legislation. Legislation will give proper protection to all. The Effects of Sexual Harassment There have been numerous studies on the effects sexual harassment has on a person’s mental and physical well being. They are considerable, and will affect the person’s ability not just to do their work but to lead their daily lives. Psychological effects include self-doubt, denial and self-blame, humiliation, loss of interest in work, a feeling of powerlessness, a loss of trust, anger and depression. There can also be physical injuries associated with sexual harassment, some of which stress-related and some caused by pranks and acts of violence. These can include headaches, stomachaches and sleeping or eating disorders. With regard to work-related effects, as well as the effect on the worker’s own ability to perform his or her duties, workers may be transferred, lose a chance for a promotion, receive lower wages and benefits or even lose their jobs because they have refused the sexual advances of a superior. The widespread occurrence of sexual harassment, and the effects it has on people, means that sexual harassment causes the loss of millions of dollars to business. Absenteeism, lower productivity, high worker turn-over, costs of re-hiring, costs of re-training, damaged reputations, low morale, increased legal fees and reduced loyalty are all costs to businesses. Just to give you an idea: a 1988 study in the USA found that sexual harassment cost the federal government some US$ 267 million between 1985 and 1987 in job turnovers, health insurance, medical leave associated with sexual harassment and lost productivity. What is the Situation in Malaysia? The government of Malaysia has acknowledged the fact of sexual harassment through the drawing-up and implementation of the (voluntary) Code in 1999. Many groups want more than this, based on the premise that the Code has been ineffective. While raising awareness and generally encouraging companies to come up with policies and grievance procedures, the Code does not itself provide procedures for redress. The fact that it is voluntary is also a major drawback: since its implementation, a mere 1.125 % of some 400,000 employers registered with PERKESO have adopted this code and set up in-house monitoring polices for sexual harassment. Measuring the actual prevalence of sexual harassment is difficult. For example, officially the Ministry of Human Resources received 188 complaints between 1997 and 1999 (The Star, 13 May 2001), but this is believed to be just the tip of the iceberg. A recent survey by the All Women’s Action Society and the Women’s Development Collective of 1,483 respondents from six companies which had adopted the MOHR Code of Practice showed approximately a third of both male and female respondents having experienced some form of sexual harassment. These are significant numbers. Don’t forget, many people have no idea that they are entitled to some sort of protection and that there is a way (and a need) to report incidents. As in so many areas, workers are often not sure of their rights or any grievance procedure. Neither is everyone able to articulate his or her ordeal. There is often confusion and the fear of not being believed, of humiliation, of being ostracized or victimized. This is real, simply because of the sad fact that many employers are either embarrassed or threatened by the existence of sexual harassment and do little to protect complainants. They might even choose to protect the harasser (they might even be the harasser). Many victims of sexual harassment have become the object of investigations and some have been victims of retaliatory tactics due to lack of protection. A voluntary code cannot protect workers; a law is needed. What is proposed vis-a-vis legislation? Experience from different parts of the world show such legislation against sexual harassment is possible. Some countries, including Australia, Canada, France, New Zealand, Spain, Sweden and the United States, have specific laws on sexual harassment. Other countries sometimes cover it under laws on wrongful dismissal, tort (civil) law or criminal law. In Malaysia, under Section 509 of the Penal Code, any person who insults the modesty of any woman by word, through sound, gesture or exhibits any object intentionally, shall be punished for a term which may extend to five years or be fined or both. When it involves an assault or the use of criminal force, the convicted person may be charged under Section 354 of the Penal Code for outrage of modesty which carries a punishment of up to 10 years imprisonment, or with whipping, or with a fine, or with any two of the mentioned punishments. Many people argue that this is sufficient to cover sexual harassment. However, there are problems with the Penal Code, for instance;
The aim of the Bill is to compel employers to institute and abide by a standard process in dealing with sexual harassment at the workplace. Among other things, the proposed Bill:
The reaction of the Ministry has been to indicate preference for an “educational approach” and “training initiatives” (NST, 31 March.2001). Human Resources Minister Datuk Dr Fong Chan Onn announced the formation of a Sexual Harassment Unit under State Labour Departments nationwide to specifically cater for cases of sexual harassment and discrimination at the workplace (NST, 3 September 2001). More recently, he stated that the Code could be incorporated into collective agreements (CAs) with the assistance of the Labour Office (The Sun, 2 December.2001). The problem with this is that, apart from the Code not having procedures for redress, only a small minority of the nation’s working population are unionized and so only a minority of employees have CAs with their employers. Meanwhile, thousands of Malaysians suffer sexual harassment, with little action or redress undertaken on their behalf. All around the world, people and governments are becoming more and more aware of sexual harassment and the toll it takes on people’s lives and the nation’s economy. In this area, as in so many others, Malaysia has the chance to learn from and adapt the experiences of other countries to suit our Malaysian situation. Out of respect for workers throughout the nation, who continue to shape and mould the country, Malaysia must take courage and move towards setting a high standard of conduct at the workplace and implement a Bill which enforces standardization of procedures and processes for dealing with sexual harassment. The sooner we do this, combined with continued work in raising awareness of the issues at all levels of our society, the closer we get to seriously tackling sexual harassment at the workplace. Support the proposed Sexual Harassment Bill. Now tell us what you think. E-mail us. |
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Picture this: A woman goes to an office to present some research findings to the person in charge, a man. The man asks her if she is married and her age. Later during her presentation, he interrupts her with “Excuse me, but I think you are so cute!” As she leaves his office (after her presentation), he shakes her hand and asks her, “So, how old are you?”