Amy complained to the Equal Opportunities Commission (EOC) that she had been sexually harassed by her supervisor. It happened on several occasions over six months while she was working as a waitress in a hotel restaurant. She had complained to the hotel management but they did not act on her complaint. She was subsequently transferred to work in the cake shop, where she earned much less than she had been earning as a waitress. She alleged that she was victimized as a result of her earlier complaint of sexual harassment.
When the EOC contacted Amy's supervisor, he made a counter allegation that Amy made a malicious complaint because he had refused to raise her share of customers' tips. Amy denied his counter allegation, and insisted that he had to apologize to her in writing. She also requested to go back to work in the hotel restaurant.
After giving a clear message about the request of the complainant, the EOC staff also explained to Amy's supervisor as well as the hotel management their respective liability under the Sex Discrimination Ordinance (SDO). As a result of the EOC's conciliation efforts, the hotel agreed to reinstate Amy as a restaurant waitress. Her supervisor also agreed to settle the case by providing an apology letter.
Under the SDO, employers are responsible for preventing sexual harassment at the workplace, while employees may be personally liable for their conduct in the course of their employment.
Sexual harassment is any unwelcome sexual behaviour in which a reasonable person would anticipate that the subject of attention would be offended, humiliated or intimidated.
(Update: The case of Ratcliffe v Secretary for Civil Service (1999) noted that in defining "unwelcome" and constituting sexual harassment, the objective standard of the reasonable man should be applied.)
Under the SDO, it is also unlawful for employers to treat a person less favourably because he or she has made an allegation about another person having acted unlawfully under the SDO. This treatment is defined as "Victimization" in the SDO.
Good management practice : Confidentiality
The principle of confidentiality should underpin any policy on sexual harassment. In short, this means that any information relating to a complaint of sexual harassment must only be given on a need-to-know basis. Employers need to ensure that managers understand this principle when dealing with complaints. By adopting such a principle, it gives assurance to the complainant or potential complainant that the management appreciates the sensitive nature of sexual harassment and that the complaint's details will not be disclosed to other colleagues.
|Q & A about the Employment Ordinance|
|Q1 ||My supervisor has asked me to go out with him and has asked me personal questions about my relationship with my boy friend. I told him that I didn't want to go out with him and that I didn't want to discuss matters of a sexual nature but he keeps on asking. When I complained to my boss, he said that I should humor this supervisor and go out with him. I then complained to the big boss who said that this was a personal matter and that I was a big girl and should be able to handle it myself. If I lodge a complaint, whom should it be against? |
|A1 ||If you want to lodge a complaint of sexual harassment, you can lodge it against your supervisor, your boss and the company. |
|Q2 ||My boss asked me to have sex with him when we were on a business trip outside of Hong Kong. Am I protected under the SDO when the sexual harassment takes place outside of Hong Kong? |
|A2 ||Yes. If you are employed to work mainly or wholly in Hong Kong, the harasser is liable for sexual harassment even though the unlawful act is committed outside of Hong Kong. |
|Q3 ||My colleague has pornographic pictures on his computer screen in the office and likes to discuss it loudly with the other men within my hearing. This embarrasses me but they refuse to stop. Is this lawful behavior?|
|A3 ||The display of pornographic pictures at the workplace may amount to the creation of a sexually hostile environment, which is unlawful. The employer should provide a working environment that is not sexually hostile or intimidating. Therefore, you can lodge a complaint against the employer and against your co-workers for the creation of a sexually hostile or intimidating work environment. |
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Source : The Equal Opportunities Commission