ALL forms of sexual harassment in the workplace, such as outraging the modesty of colleagues, using obscene language and suggestive remarks, and unwanted physical contact, are unacceptable in a workplace.
Sexual harassment affects employees’ morale and job performance. It reduces productivity and increases the rates of sick leave and absenteeism.
In most cases, victims experience emotional trauma, anxiety, depression and low self-esteem.
The greatest danger is that when it goes unchecked, it can spread in the organisation like an infection.
An employee should feel secure in the workplace and it is the duty of the employer to provide a safe place and system of work.
Care and support must be provided to employees so that they can carry out their duties without harassment and disruption by fellow workers and/or customers.
An employer who ignores or condones sexual harassment in his establishment may expose himself to legal action by the aggrieved employee.
An employer may be in breach of duty if he knows that acts of a sexual nature are being committed by employees or clients and that these acts cause physical or mental harm, but he does nothing to address them.
The employer may be in breach of duty if he foresees that such acts may happen and cause physical or mental harm to an individual.
A victim of sexual harassment may file a tortious suit against the harasser in the civil court for assault and battery.
Battery may mean the abuse involves physical touching. If the victim was threatened with physical sexual abuse or assault, an assault claim can be filed.
A claim of emotional distress involves verbal abuse, intimidation and stalking, among others.
Where the claim is well-founded, the court may award damages for physical and emotional harm suffered by the victim.
The employer may be liable to the victim for the tortious acts of his employees committed within the course of the employment.
The victim may consider filing a suit for vicarious liability against the employer for sexual harassment done by another employee.
A serious incident of sexual harassment, such as the touching of the victim’s intimate parts, may warrant a criminal charge of sexual assault against the harasser under the Penal Code.
Using criminal force on a person with the intent to outrage his or her modesty, insulting the modesty of a person with words or gestures and rape, among others, are punishable offences.
If a victim lodges a police report, investigations may be carried out and if the allegation is established, the accused may be charged in court.
Hence, the laws are adequate to protect victims of sexual harassment. However, what is lacking is the awareness of what constitutes sexual harassment and the evidential requirements to establish the allegations of sexual harassment.
Therefore, evidence is extremely important to assist the employer or the court to seek the truth. Unlike in criminal cases, where the standard of proof required is beyond reasonable doubt, in sexual harassment cases, the standard of proof on the claimant is on a balance of probabilities. The onus shall always be on the complainant/victim to prove, on a balance of probability, that such acts were committed by the assailant. Evidence can also be from other witnesses.
To make the case on sexual harassment more convincing, various factors would have to be considered, including making a police report, lodging a complaint with the superior, ensuring there are witnesses to the victim’s reaction after the incident, immediately relating the experience verbally or in written form to more than one person, among others, on a case-to-case basis.
Keeping quiet may sometimes be construed as consenting to the advances made by the harasser. The preventive measures to curb sexual harassment are essential for a safe environment in the workplace.
Prof Ashgar Ali Ali Mohamed, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia