Sexual Harassment and Abuse at Work
by Vivian Kuan and Hannah Nanneri Nanggai
(A) Background
Leslie (pseudonym) worked as a sports coach between 2016 to 2017. She reports being constantly verbally harassed, bullied, and manipulated throughout her employment by her boss, who was the owner of the place of employment at the time. She has since quit that sport, and was only able to seek help in 2021 by seeing a therapist to help cope with the trauma.
She also worked as a freelance sports pundit between 2016 to 2019 and faced similar harassment, where the perpetrators were mainly her male colleagues.
(B) Situational Analysis
The detailed witness account of her experience during her time as a sports coach and a freelance pundit reveals the many layers of discrimination she faced at work.
In particular, she faced the following forms of discrimination during her employment:
(1) Exploitation: Her abilities were belittled, and she was positioned in a lower-ranking role as well as paid less than her less-qualified colleagues;
(2) Discrimination: She was denied opportunities for advancement and exposure, based on excuses, e.g. she was the only female coach, and thus could not share rooms with male coaches during work that involved travel abroad; and
(3) Sexual harassment: She was constantly being harassed / lured to go to her employer’s home under the guise of various work-related purposes; she was subjected to late-night phone calls despite her discomfort; her male colleagues often made sexual remarks or degrading and derogatory comments about women; and her male colleagues discredited the qualifications of women in her type of sport.
The witness account of the abuse suffered is not isolated, as female sports coaches around the world report that they too have experienced negative encounters and incidents of harassment and degradation. In an article by BBC UK, a study conducted in the UK found that “coaches described working in a culture in which they are and feel minoritised. It is a culture that is underpinned by unequal gendered assumptions and in which power is retained by a few rather than many.”[1]
This is similar to the witness account wherein she was told to stay in Malaysia despite her role as a media coordinator, and was only tasked with coaching young female athletes when she was in fact skilled to coach a more senior group of athletes. This appears to be the case as there is no professional, regulated system in respect of coaching.
(C) Status of State Interventions
(C1) Laws Addressing Sexual Harassment in Malaysia
In Malaysia, there is no specific piece of legislation which governs and/or regulates the protection against sexual harassment. However, in 2012 sexual harassment was included in the Employment Act 1955 under part XVA to regulate the protection against sexual harassment in the workplace. In 2016, the Federal Court held that sexual harassment is a civil wrong for which victims may sue their harassers.
The State interventions thus far are largely ineffective in promoting protection against sexual harassment. A study by Women’s Aid Organisation in 2020 reported that 62% of the 1,010 women surveyed reported that they have experienced one or more forms of sexual harassment in the workplace.[2]
The time is now for Malaysia’s Parliament to table and pass the Sexual Harassment Bill, which introduces oversight procedures and tribunals for sexual offences committed.
Penal Code
The Penal Code criminalises the following acts, which may be acts of sexual harassment:
(a) Molestation (section 354);
(b) Assault or use of criminal force with the intent to dishonour a person (section 355);
(c) Outrages on decency (section 377D); and
(d) Word or gesture intended to insult the modesty of any person (section 509).
These criminal acts generally carry a sentence of imprisonment. However, as these are criminal acts, the standard of proof is higher in nature and may not necessarily address the harassment suffered at work. As seen from the witness’s account of her experience, the harassment by her colleagues and employer does not fit squarely within any of the above-mentioned criminal offences.
Employment Act 1955
Part XVA of the Employment Act 1955 addresses “the complaint of sexual harassment” rather than any act of sexual harassment. The provisions in part XVA merely lay out the procedure and process for inquiry in the event of complaints of sexual harassment, rather than defining acts of sexual harassment. An offence under this part (section 81F) is only in respect of an employer who fails to comply with the inquiry procedure.
This is insufficient as it only addresses the procedures once a complaint is made, rather than addressing sexual harassment as being an offence on its own.
Industrial Relations Act 1967
Section 20 of the Industrial Relations Act 1967 addresses remedies where one is dismissed unfairly or has resigned due to sexual harassment. The remedies include reinstatement, and compensation in lieu of reinstatement.
This provision fails to consider the long-term mental impact that a victim of sexual harassment suffers, where reinstatement may not be an option and compensation may not be sufficient. As seen from the witness account, she was only able to seek professional help in 2021, long after her employment had ended.
Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace
This Code was introduced in 1999 by the Ministry of Human Resources Malaysia to encourage companies to adopt it as a guideline for their organisations. However, it was not made compulsory to do so.
The Code is comprehensive as it even includes sexual annoyance, where an annoying conduct may create a bothersome working environment which the recipient of such annoyance has to tolerate in order to continue working. However, it has yet to be updated to reflect the modern changes in a more digitised society. Harassment takes different forms in the 21st century than it did in the 20th century.
Furthermore, this code is merely optional rather than mandatory.
Sexual Harassment Bill
On 12 September 2021, the Women, Family and Community Development Minister Datuk Seri Rina Mohd Harun stated that an Anti-Sexual Harassment Bill is being drafted collectively and is expected to be tabled in Parliament this year (2021).[3]
(C2) International Instruments
In respect of discrimination, Malaysia is not a State Party or member State to international instruments that require measures to be taken to ensure a working environment without discrimination. Malaysia has not ratified a fundamental convention of the International Labour Organization (ILO), namely C111 — Discrimination (Employment and Occupation) Convention, 1958 (No. 111).[4]
Article 2 of C111 clearly provides that member States must undertake to pursue a national policy "designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view of eliminating any discrimination in respect thereof”.
A national policy of this nature would cut across industries, and might create an environment of equal opportunity and pursuit for women employees. From the witness account, it is evident that having a clear national policy of non-discrimination on the basis of gender would invite conscious actions to correct, rectify, and create an environment of equal opportunity in the workplace.
(D) Recommendations
(1) The Parliament to urgently table the Anti-Sexual Harassment Bill;
(2) The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace to be amended and made compulsory; and
(3) Malaysia to ratify C111 — Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Endnotes
[1] Scott, Laura. “UK Athletics: Some female coaches experience sexual harassment, report finds”. BBC. 16 February 2021. www.bbc.com/sport/athletics/56085649.
[2] Women’s Aid Organisation . “LETTER | Women’s experiences show urgent need for Sexual Harassment Act”. Malaysiakini. 5 November 2020. www.malaysiakini.com/letters/549526; “Voices Of Malaysian Women On Discrimination & Harassment In The Workplace [Data].” Vase.ai. 27 October 2020. https://vase.ai/resources/womens-rights/.
[3] “Anti-Sexual Harassment Bill to be tabled this year, says minister”. Malay Mail. 12 September 2021. www.malaymail.com/news/malaysia/2021/09/12/anti-sexual-harassment-bill-to-be-tabled-this-year-says-minister/2004950.
[4] “C111 - Discrimination (Employment and Occupation) Convention, 1958 (No. 111)”. International Labour Organization. www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312256:NO.