Anita Lam is a consultant, head of employment, Hong Kong, at Clifford Chance. She practises across all areas of employment law, with a particular focus on contentious employment, discrimination and data privacy disputes.
Letting lewd comments trip off the tongue at work or at a work-related social function can go way beyond a joke. It can cost one their job.
According to a recent survey conducted by a women’s group, sexual harassment remains rife in the workplace in Hong Kong. Around 60 per cent of female and 50 per cent of male interviewees indicated that they had experienced sexual harassment in the workplace.
The problem appears to be more serious in the property management sector, where 86 per cent of security guards experienced sexual harassment. This was followed, in order, by workers in construction, aviation and retail – each with over 70 per cent of employees having experienced harassment.
In July this year, crude jokes made by a senior executive of a Chinese web services company at a public international forum cost him his job. The executive was reported to have commented on the appearance of his female colleagues and made sexual jokes about them. Despite his subsequent attempts to apologise and make amends, he was dismissed from his executive management position.
Even more scandalous was the resignation of Roger Ailes, who had to end his 20-year career at Fox News as a result of allegations of sexual harassment. What appears to be a small spark can often set a forest on fire.
In Hong Kong, the Sex Discrimination Ordinance prohibits two types of harassment: one-on-one unwelcome sexual behaviour, as well as harassment that creates a “hostile environment”.
Unwelcome behaviour that may amount to sexual harassment can include:
● Requests for sexual favours
● Sexual or suggestive remarks
● Sexual propositions or repeated requests for dates
● Sexual or obscene jokes
● Physical contact, such as touching, hugging, grabbing or brushing up against another person
● Asking repeated questions about another person’s personal life
● Making offensive phone calls, or publicly reading out or displaying materials that are offensive
● Engaging in any conduct of a sexual nature that causes discomfort.
When determining whether an act amounts to unwelcome sexual behaviour, Hong Kong courts will consider whether the complainant found the conduct or behaviour offensive or unwelcome, and whether, objectively speaking, the conduct should have been anticipated that the person concerned would be offended, humiliated or intimidated.
Apart from putting a harasser’s career at risk, the aggrieved complainant can also take the matter to the Hong Kong Equal Opportunities Commission, or to court.
For example, in 2011, a female employee sued her male co-worker for sexual harassment. Both of them worked in the same unit of a government department. The male worker was reported to have repeatedly made lewd remarks and facial expressions of a sexual nature, despite being asked to stop.
The female employee lodged an internal complaint, which was found to be unsubstantiated due to vague witness statements. The female employee was then asked to move to a position of lower rank to avoid the defendant. Feeling greatly aggrieved, the female employee sued the co-worker in court.
The Hong Kong court ruled in favour of the female employee, and the male worker was found liable for sexual harassment and ordered to pay damages for injury to feelings of HK$50,000, plus exemplary damages of HK$10,000.
An employer can be legally responsible for the damage caused by its employee’s conduct, including sexual harassment.
To avail itself of a defence, the employer must show that it took all reasonably practicable steps to avoid harassment or discrimination, such as showing commitment to an equal opportunities policy and anti-harassment policy, as well as providing regular training for employees. Any employee who is found to have behaved inappropriately should be disciplined, which should include a warning or dismissal.
For customer-facing employees, employers should also be alert to crude jokes or inappropriate behaviour from customers. If such conduct is perceived as being tolerated, the working environment can become sexually hostile and the employer can incur liability. If the harasser is an employee of a corporate customer, the corporate customer can likewise be held legally responsible for the harasser’s conduct.
This article appeared in the Classified Post print edition as Preventing lewdness becoming liability.