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Time to fight the sex pests

Published on Friday, 24 Aug 2012
Photo: iStockphoto
Pattie Walsh
Lam Woon kwong

Sexual harassment in the workplace takes many forms. It can be a one-off incident consisting, for example, of groping a woman’s breast; ongoing unwelcome behaviour such as persistently sending lewd text messages; or creating a threatening atmosphere by displaying sexually offensive pictures or posters in the workplace.

“Sexual harassment consists of any unwelcome sexual behaviour in circumstances where a reasonable person would anticipate the harassed person would be offended, humiliated or intimidated,” says Lam Woon-kwong, chairman of the Equal Opportunities Commission (EOC).

“It includes unwelcome sexual advances, unwelcome requests for sexual favours, and other unwelcome conduct of a sexual nature. It also includes creating a sexually hostile work environment.”

According to the EOC, the most commonly reported incidents typically consist of verbal harassment, non-essential body contact and written messages of a sexual nature sent by e-mail or SMS. Often, unwelcome sexual advances are made by a superior to a subordinate, where the power imbalance is used to exploit the victim.

Sexual harassment in the workplace is illegal and is governed by the Sex Discrimination Ordinance (SDO). About one-third of complaints made under the SDO are sexual harassment cases. The number of cases reported is relatively low for a city of seven million people, says one labour lawyer, but there are signs of a slow rise. From January to June this year, 66 cases were reported, against 63 for the whole of 2011.

“The increase in sexual harassment complaints may be attributed to the possible effect of widely publicised sexual harassment court cases in recent years,” says Lam.

However, the number of cases that proceed to court remains very small. Since the EOC was set up in 1996, it has granted legal assistance to 31 sexual harassment cases. Seven cases were settled out of court, eight were withdrawn, 11 writs were issued and the EOC is still processing five legal cases.

“Those who came forward to the EOC probably represent the tip of the iceberg only, given the conservative gender culture here. Victims are no doubt worried that they would be stigmatised by making a complaint,” says Lam.

Pattie Walsh, a partner and head of DLA Piper’s Asia-Pacific employment, pensions and benefits practice, says figures for the US and the UK are many times higher than those in Hong Kong. “The interesting thing is, the law is pretty much the same” in all these jurisdictions, she says.

While it is much easier to fire employees in Hong Kong than it is in the UK or the US – the EOC has handled several cases where the employer’s response to complaints of sexual harassment has been to fire the employee – Walsh agrees that the main reason for the reluctance of victims in Hong Kong to come forward is cultural.

Employees tend to avoid confrontation, maintain their privacy in the workplace and keep their anonymity for fear of becoming unemployable if seen as troublemakers. Instead of fighting back, the response is often just to say nothing and leave the job.

In many traditionally managed Hong Kong workplaces, the hierarchical structure can deter employees from making complaints about superiors. Reporting more cases, however, is essential to highlighting the problem.

“To change things in Hong Kong, we have to create an environment where people feel they can be heard, not be persecuted for being heard,” says Walsh. “People need to reassert their right to work in a sex-free environment. Maybe some high-profile cases would encourage people to come forward.”

Compounding the problem is that many companies have no training on the topic. Many may not be aware, for example, that employers are liable for the actions of their staff, even if the employer is not aware of the harassment.

Establishing a code of conduct in the workplace can help companies make it clear to potential harassers that sexual harassment will not be tolerated. The EOC’s approach is to focus on persuading human resources managers to create equal-opportunity policies for their companies, as these would give victims more confidence to pursue their complaints and also act as a deterrent to potential harassers.

Victims of sexual harassment should not ignore the behaviour in the hope that it will go away, as the harasser may take that for approval of the behaviour. Instead, the EOC suggests several ways to respond.

Start by saying “no” – tell the harasser to stop, and that you do not want the sexual attention. If it happens again, send a letter telling the harasser to stop, and keep a copy.

Write down what happened and include the date, time, place and what the person said to you. If the person touched you, write down where you were touched and who was there. Keep a copy of these notes at home.

Get support from friends, family and colleagues. Some people feel depressed because of the harassment. Take care of yourself. If you are afraid that you might lose your job, try to find out if other colleagues have the same problem at the company. Join with them to try to work out the problem.

Talk to your union representative, if you have one. See if you can get support from an NGO or other related organisation.

Talk to your employer or your human resources department and find out if your company has a written policy against sexual harassment and a procedure for making a complaint.

Keep a record of your work. Keep copies of your job evaluations and any letters or memos that show you did a good job at home. The harasser may question your job performance in order to defend their behaviour.

Lodge a written complaint with the EOC, who will then investigate and try to agree a settlement by conciliation. If that fails, the complainant can ask the EOC for legal assistance. All information is treated in strict confidence.

Find out more about your legal rights. You can talk to a lawyer or file a law suit in the District Court. 

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