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Discrimination


Article contributed by
special arrange with the
Equal Opportunities Commission

The right to say "No"


Julie launched a complaint with the Equal Opportunities Commission (EOC) against her supervisor, who sexually harassed her for a year before she was forced to quit. The complainant also lodged a complaint of vicarious liability against the estate management company, the employer of the alleged harasser.

"I had worked for an estate management company as a cleaner since 1997. During an afternoon in mid-1999, my immediate supervisor molested me for the first time. We were discussing some job arrangements at the management office when he suddenly touched my breast. I was so angry and frightened that I left immediately. Nobody was around at the time.

This was only the beginning of a nightmare. Two weeks later, when there was nobody around in the management office, he harassed me again. The same thing happened 10 times in 1999. I remember clearly because I have put all these unhappy experiences in my diary. Despite my repeated rejections, he had no intentions to stop. On the contrary, he became more offensive. There was one occasion when he even followed me to the toilet. I hurt my back on the towel-hanger when I tried to stop him from entering. I cried loudly and he fled.

When I mentioned this to our boss, she told me not to pursue a complaint. She implied that she would help me solve this problem but apparently she had done nothing about my complaint. I was very upset and humiliated. It was so unbearable that I eventually resigned in mid-2000."

Upon receipt of the complaint, the EOC suggested an early conciliation for all parties. The complainant and the respondents all agreed to the arrangement.

After a series of negotiations, the supervisor agreed to give a written apology. In accordance with the complainant's wish, the estate management company consented to investigate the case, inform staff of its sexual harassment policy as well as conduct staff training. The case was then settled.

Mediation and conciliation is often a more efficient and cost-effective means to resolve disputes than litigation. By establishing a workable solution acceptable to all parties, conciliation tends to diffuse hostility. In case of sexual harassment the best is to conciliate at an early stage by mutual agreement between the complainant and the respondent(s).

What the law says

Sexual harassment includes unwelcome conduct of a sexual nature by which a reasonable person would feel offended, humiliated and/or intimidated. Under the Sex Discrimination Ordinance, sexual harassment in employment is unlawful. It is worth noting that although an employer might not encourage sexual harassment acts or has no knowledge of such acts being committed, the employer would nevertheless be held vicariously liable for the unlawful acts of its employees, unless the employer could prove that reasonable and practicable steps have been taken to prevent such offences from taking place. (Update: This was the case in B v King of the King Group Limited (2010).)

Q & A about the Sex Discrimination Ordinance
Q1 My employer harassed me sexually over a period of six months and when I told him that I would complain to the EOC, he fired me. He told me that the EOC would not believe my complaint after I was fired. They would believe him, when he says that I only lodged a complaint to take revenge on him, because he fired me. Would I stand a chance if I lodged a complaint, since there were no witnesses?
A1 Yes, you may lodge a complaint with the EOC and the EOC will investigate the case. Under the Sex Discrimination Ordinance(SDO), it is unlawful for employers to treat you less favorably because you have shown the intention of lodging a complaint of sexual harassment. If they do, the treatment is defined as "victimization" in the SDO. If you lodge a complaint with the EOC, as the complainant, you would be asked to provide as much supporting evidence as possible. This may include documentary evidence (for example: performance appraisals, notes made by the complainant about particular incidents relating to the complaint) as well as evidence of witnesses. The strength of each case depends on its own circumstances. The lack of witnesses should not defer victims of sexual harassment to come forward to lodge a complaint.

Q2 I have recently taken a job as a waitress. Despite my objections, my employer pinned up 2 posters of naked men and women in the female locker room. In addition, he constantly touches my buttocks and refers to me as "sweetie-bum". Do these acts constitute sexual harassment?
A2 Yes, these acts do constitute sexual harassment. A person commits sexual harassment if he makes any unwelcome sexual advance or any request for sexual favors from another person, or engages in unwelcome conduct of a sexual nature in relation to another person. Thus, sexual remarks about your appearance, unwelcome sexual gestures, sexual jokes said in your presence constitute sexual harassment. In addition, any conduct of a sexual nature, which creates a sexually hostile or intimidating work environment for a person, constitutes sexual harassment. The pinning up of pornographic pictures may fall into this category. You are protected against sexual harassment by the SDO and may lodge a complaint against your employer with the EOC.

Q3 Who can be sexually harassed?
A3 People of both sexes at any age can be sexually harassed. Sexual harassment often takes place when one person (or a group of people) uses power inappropriately over another person (or a group of people). However, it can also take place in situations where there is no relationship based on power, for example, among colleagues.


Taken from Career Times 16 August 2002

(Last review date: 23 August 2013)


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

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