Law change means employers must deal with customers who sexually harass staff
The service industry environment in Hong Kong has become more legally complex for employers since the December 2014 amendment of the laws on sexual harassment under the Sex Discrimination Ordinance. These changes provide that staff in services industries can be sexually harassed by their customers, while liability for harassment by a customer may now pass to an employer that fails to stop it.
The law previously only prohibited service providers such as doctors, flight attendants or waiters from sexually harassing a customer. Now, however, action must be taken to address inappropriate behaviour by a customer, even if it may affect business.
In an increasingly complicated employment environment, where social media brings personal lives into the workplace, it is now acceptable to be more relaxed. In this context, sexual harassment between customer and service provider can arise with relative ease.
The law recognises harassment as unwelcome or uninvited sexual behaviour that is viewed as offensive, humiliating or intimidating. At its most obvious, harassment could be an unwelcome sexual advance by a customer to an employee, but it can take more subtle forms such as creating an environment one person views as hostile. The unwelcome behaviour does not need to be repeated or continuous – a single incident can constitute harassment.
Common examples employees have to deal with include: sexual comments – even those made in jest or as innuendo; unwelcome requests for sex; and physical contact – such as touching, even if relatively innocuous.
By contrast, creating a “hostile environment” does not need to be directly or consciously targeted at an individual. It can include making sexually derogatory or stereotypical remarks; questions about a person’s sex life; displaying conscious or even unconscious sexist traits; displaying sexist or other sexually offensive pictures; and leering or lewd gestures.
A customer accused of harassment would generally face civil liability. However, certain acts of sexual harassment (such as indecent assault, indecent exposure or rape) may also amount to criminal offences.
Companies will of course wish to ensure customer satisfaction continues to be paramount, but it will no longer be possible for them to avoid addressing the risk of harassment from customers.
If a customer sexually harasses an employee and the employer ignores the complaint or fails to prevent the repetition of such conduct, the employer may also be liable for allowing the circumstances to arise. If an employer tries to prevent an employee from bringing a complaint of sexual harassment or acts against them because of the complaint, the employer may be liable for discriminating.
An employer may also be liable for acts of sexual harassment committed by its employees. This means that if a company representative harasses a flight attendant while on a business trip, the company may be held vicariously liable for the representative’s act.
To avoid liability, companies should make clear what behaviour is considered inappropriate and monitor behaviour through staff policies, compliance manuals and complaints systems.
Employers should update and implement a comprehensive anti-harassment policy that states that management will not tolerate any act of sexual harassment, and that employees have the right to make a complaint without fear of reprisal. They should also investigate any complaint seriously – and in accordance with the company’s anti-harassment policy – and if a customer is harassing an employee, the employee’s supervisor should step in and put an end to the inappropriate behaviour.
If the problem persists, the company may consider refusing the customer future access to the business premises.