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Discrimination


Article contributed by special arrangement with the Equal Opportunities Commission

Take steps to eliminate sexual harassment


Mary was a site clerk and the only female employee in a small construction company. Her daily work included stocktaking plus ordering and receiving construction materials. The site manager, who also owned the company, was responsible for sales and monitoring the progress of construction work. Usually, when he sent reports to clients, he would include digital photos taken on site and, occasionally, he would stare at some of the photos in a lewd way.

Mary did not fully understand why until one day the manager asked her to save some digital photos from the site on her computer. She did as instructed but, to her dismay, found that three of the photos showed someone who was naked, and left little to the imagination. She felt angry and humiliated, and because she no longer felt comfortable working in such an environment, decided to quit on the spot. Later, she lodged a complaint with the Equal Opportunities Commission (EOC) on the grounds of sexual harassment.

The EOC investigator looked into the case and sought information from both parties. The employer denied all allegations, stating that he had never taken or seen the photos. However, he was willing to resolve the matter by early conciliation. This offers one way of settling a case within a shorter time frame and can be adopted at any point before or during an investigation. Mary did not want the case to drag on and also welcomed this approach. The settlement included monetary compensation equal to approximately one-third of her monthly salary and a letter of apology. The employer also agreed to display details of an anti-sexual harassment policy and materials adapted from EOC publications on the company's notice board.

Some people try to dismiss sexual harassment as "just a bit of fun". In reality, it is a very specific form of discrimination and, under the Sex Discrimination Ordinance (SDO), sexual harassment in employment is unlawful. It includes any unwelcome behaviour of a sexual nature, which a reasonable person might regard as offensive, humiliating or intimidating. Acts of sexual harassment can be direct or indirect, physical or verbal. They can be indecent or suggestive remarks, the display of pornography, the circulation of obscene materials, inappropriate touching, and requests or demands for sexual favours.

(Update: In the case of Ratcliffe v Secretary for Civil Service (1999), the Court held that "section 2(5)(a)(ii) covers unwelcome conduct of a sexual nature engaged in by a person in relation to the complainant although the conduct, as in this case a conversation, was not 'in respect of' her but 'with' her. For example, if a man tells dirty stories to a woman in a partitioned room of a restaurant and such stories are unwelcome to her, applying the objective standard of the reasonable man, then sexual harassment is constituted... Section 2(5)(b) is of a different nature, which covers, for example, situations where a person posts up a lewd picture on the notice-board of an office or circulates a lewd picture in the office, which creates a sexually hostile or intimidating work environment for others working in the office.")   

Q&A on sexual harassment in the workplace
Q1 What is sexual harassment?
A1 There are two forms of sexual harassment. The first is any unwelcome sexual behaviour or conduct which is offensive, humiliating or intimidating. The second can be the creation of a work environment where there are actions, language or pictures of a sexual nature which make it hard for someone to do their work. This is called "a sexually hostile work environment".

Q2 I run a ladies' clothing store and recently hired a male business graduate as manager. Now he has complained about being sexually harassed, saying that other female staff ask him about his personal life, offer sex tips and tease him about not being married. Can women sexually harass men?
A2 While it is more common for males to sexually harass females, it can happen the other way around and between people of the same sex. Any unwelcome sexual behaviour which it can be reasonably anticipated another person would find offensive, humiliating, seriously embarrassing or intimidating is against the law. The behaviour you describe is of a sexual nature, obviously unwelcome, and is clearly upsetting your manager. Tell your staff their behaviour is not acceptable in the workplace. Unless you take reasonably practicable steps to prevent such behaviour, you may be held liable for the harassment, along with the female staff.

Q3 I run a warehouse and we employ two women in the office, one as a receptionist and the other as a bookkeeper. The latter recently told me she feels uncomfortable because her male colleagues keep describing their sexual exploits and asking for her advice about their sex lives. She also mentioned that one male colleague has a screensaver showing a topless woman. I don't encourage this behaviour, but so far I haven't interfered. As an employer why should I have to probe into a matter like this which, after all, is between adults.
A3 Yes, they are adults, but the behaviour you describe could constitute sexual harassment, which is unlawful. According to the SDO, such an unlawful act committed by your employee in the course of employment may render both him and you liable. As an employer, you are legally responsible for the actions of your employees in the course of employment, even if done without your knowledge or approval. An employer has a legal obligation to ensure that all employees work in an environment free of sexual harassment. Although you don't condone this behaviour, failing to act could leave you legally liable along with the individuals involved and their supervisor. It seems that you have not yet taken practicable steps to prevent sexual harassment, as required by law.

Q4 What are the reasonably practicable steps that an employer should take to prevent sexual harassment?
A4 These vary depending on the size of the company. However, the starting point is that all employers should have a policy statement condemning sexual harassment and making it clear that such conduct is not allowed in the workplace. Steps should also be taken to implement the policy and ensure that employees understand their rights and responsibilities. There should be an avenue for dealing with complaints of sexual harassment, and relevant training should be provided for staff.


Taken from Career Times 18 November 2005

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor

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