REACTIONS to making sexual harassment in the workplace an offence have
been mixed. Employers have protested, women’s groups have welcomed the move, but with a caveat. And one expert has suggested making it an occupational safety offence.

Thavalingam Thavarajah is against codifying sexual harassment.

Maimunah Aminuddin says sexual harassment is not only confined to women.

The Malaysian Employers Federation (MEF) protested because it feels the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, and the Penal Code are sufficient.

Women's groups feel there is a greater need for specific legislation that covers sexual harassment in all places and not just at work.

Human resources specialist Maimunah Aminuddin, who co-authored A Guide to the Malaysian Code of Practice on Sexual Harassment in the Workplace with former Labour Department director general Datuk Tengku Omar Tengku Bot, said codifying sexual harassment will not solve the problem.

"When there is a law prohibiting something, evidence would need to be adduced for the wrongdoing to be proven. In sexual harassment cases, it's usually just one person's word against the other's," said Maimunah.
She said sexual harassment is already a misconduct, like tardiness or an act of betrayal against the company, and case law has shown that courts side with the employer for dismissing an employee for sexual harassment.

Maimunah said she is against incorporating sexual harassment under the Employment Act because "employers may be fined for failure to comply with the Employment Act (EA), but at this point in time at least the EA has no provisions for punishment of individual employees or harassers."

She feels sexual harassment should be placed under the Occupational Safety and Health Act (Osha) 1994.

"This would mean that all employees would be covered, unlike placing it under the Employment Act which only applies to the private sector in the peninsula, and only to complainants who earn below RM1,500.

"The ministry can place one section under Osha that requires all employers to adopt and implement the current Code of Practice," she said.

This, said Maimunah, would allow the Department Of Occupational Safety and Health (Dosh) to ask the company during inspections to produce evidence that it had implemented the code.

"The company can do this by providing training calendars and manuals on sexual harassment, as well as the setting up of a committee made up of those who have been properly trained to investigate such complaints," she said.

Also, the fines for non-compliance under Osha are much higher than those under the EA. And it will cover third party contractors like consultants and contract workers, she added.

She said both men and women need to be educated on how painful and harmful sexual harassment can be.

"Most people will think there is no harm in dirty jokes, or making comments about another's body shape, or even what one did with one's husband the night before. So people have to speak out against this.

"If the point is clearly made that the behaviour is offensive and the harasser continues, the employee should bring it to the attention of the employer. Otherwise, the harasser is under the impression that what he is doing is acceptable."

She added that sexual harassment is not confined to women.

"When I conduct training, many Muslim men tell me that if a woman wears sexy clothes to work, they feel sexually harassed. They say it is a distraction, they don't know where to put their eyes and they cannot concentrate on their work. We need to be able to talk about what causes hurt to other people," she said.

"Employees have to be educated to the fact that they have the right not to be sexually harassed and that they have to complain when it does happen.

"This education has to be at all levels, and the Human Resources Ministry has to play its role by getting other parties to play their role. It should be made mandatory for companies to have a minimum number of hours of training on this every year."

Lawyer Thavalingam Thavarajah is against codifying sexual harassment because it may result in rigidity, and certain acts may not be included.

"But if it's already an implied misconduct, then the range is a lot wider. Case law seems to favour this," he said.

Thavalingam has written about employment law and he is the honorary secretary of MEF.

Like Maimunah, Thavalingam stresses the need for education.

"We need to educate people on their rights. They need to know exactly what sexual harassment is. They don't read acts of parliament.

"If a guy has a nude picture of a woman on his wall or as a screen saver, that also is sexual harassment. Offending email and pornographic short messages can also amount to sexual harassment, as they outrage a person's modesty to a certain extent.

"The trouble here is that people look at this lightly or they don't realise they have an avenue of complaint, or even that they are a victim of sexual harassment."