Silicon Valley is currently grappling with backlash arising from a “culture of sexual harassment”, as more women are coming forward to share their experiences of harassment. Most recently, Cheryl Yeoh, the former CEO of the Malaysian Global Innovation and Creativity Centre (MaGIC) alleged that she was sexually assaulted by an investor (you can read her account of the incident on her blog).
In Malaysia, the Employment Act 1955 (“Act”) was amended in 2012 to make it a statutory requirement for employers to investigate into all complaints of sexual harassment involving their employees (even those employees who do not fall within the ambit of the Act).
Under the Act, an employer must conduct an inquiry into complaints of sexual harassment. The only two exceptions are where the complaint was previously inquired into and no sexual harassment has been proven, or where the employer is of the opinion that the complaint is frivolous, vexatious or not made in good faith. An employee who is dissatisfied with the refusal of the employer to inquire into a complaint of sexual harassment may refer the matter to the Director General of Labour.
The failure of an employer to comply with these statutory obligations will amount to an offence that is punishable by a fine of up to RM10,000.00.
Is there a legal requirement to have a sexual harassment policy?
The Act does not require employers to have a written policy against sexual harassment. However, it is advisable for all employers to consider having one anyways to provide transparency and clarity to employees on how sexual harassment will be dealt with. This is also one of the recommendations in the Ministry of Human Resources’ Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.
A written policy should include the following, at a minimum:
- A definition of what the company views as inappropriate behaviour. The definition does not need to be exhaustive, but will serve as useful guidance to employees on what kind of behaviour will not be tolerated in the organisation. This will be especially helpful in “grey area” situations where there could be differing opinions as to whether a certain type of conduct is acceptable or not – putting it in writing will make it unambiguous and minimize debate on the issue.
- A complaint and grievance policy. The mechanism of the complaint policy will vary from company to company but it should encourage good faith complaints and protect victims from retaliation. Where possible, complaints should be handled by a senior member of management (or even by the C-suite directly) to set the appropriate “tone at the top”.
- Disciplinary consequences for those who commit sexual harassment. Actions have consequences, and in severe (if not most) cases, sexual harassment is just cause for termination.
How should a sexual harassment complaint be handled?
It is one thing to have a written policy, but most businesses stumble when it comes to the practical aspects of handling sexual harassment complaints. This could be due to various factors such cultural and religious sensitivities, and inexperience in dealing with these kind of issues. Businesses should take note of the following:
- Confidentiality should be preserved where possible to encourage reporting. However, be careful about overcommitting on confidentiality or guaranteeing total anonymity. In sexual harassment cases, most of the time it will not be possible to conduct a proper inquiry into the allegation if the complainant’s identity is not revealed to the accused employee. As all inquiries should allow the accused employee to properly defend themselves, this will not be possible if the identity of the complainant is masked and the details of the allegation are withheld. Instead, employers should assure employees that necessary steps to protect confidentiality will be taken, but certain information may have to be disclosed on a need to know basis only.
- There must be a blanket “no retaliation” policy against complaints made in good faith. An employee should not be subject to retaliatory behaviour from the company or their supervisors for lodging a complaint of sexual harassment. Without this guarantee, employees may be reluctant to come forward with complaints. There is an exception to the “no retaliation” rule: employees can be subject to disciplinary action if they intentionally lodge false complaints in bad faith.
- Sexual harassment often occurs in private, and there is unlikely to be numerous (or even any) witnesses to corroborate the complainant. As such, when conducting the inquiry, businesses should carefully weigh the various factors in determining the credibility of both the complainant and the accused, such as whether either party has a reason to be untruthful. What is ultimately important is that both complainant and accused must be given the full opportunity to tell their side of the story before any decision is made.
- When investigating a complaint, be sure you are only taking into account relevant information and not irrelevant factors. For example, whether the victim was inappropriately attired and whether he or she was intoxicated does not mean that there is no sexual harassment. “Victim blaming” will damage the impartiality of the investigation.
- Details are important. As sexual harassment may have criminal or semi-criminal elements, Malaysian employment law requires that all charges framed against an accused employee must include material particulars such as the date, time and place the offence was alleged to have taken place. This is to enable the accused employee to prepare his response or defence adequately. If an employee is terminated for sexual harassment based on imprecise charges, this opens up the business to a potential claim of unfair dismissal.
From our experience in dealing with sexual harassment complaints, there is often a gap of time between the incident of harassment and the complaint. Common reasons given by complainants include embarrassment, the fear of reprisal or of being disbelieved, the lack of confidence that management would be able to resolve the matter, and the wish “not to make a big deal out of it”. Aside from just having a grievance policy, businesses should work hard to promote awareness about this issue and to create a culture where employees will not be afraid to speak out if they see something wrong. Sexual harassment in the workplace is a big deal – it’s not a “woman’s” issue; it’s a people issue.
ABOUT THE AUTHOR. This article was written by Donovan Cheah. Donovan Cheah is a partner at Donovan & Ho and has been recognised as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017. He is an advocate and solicitor of the High Court of Malaya, and his writings have been featured in publications like The Edge, The Star, the American Chamber of Commerce updates, and Asialaw.