The slew of reported cases on sexual harassment/assault in recent times-controversies surrounding high profile figures like Harvey Weinstein, James Toback, just to name a few- shed light not just on the extent of the problem, but also of the fact that women are often disproportionately affected by it.
A lot of attention has been given of late to Hollywood and the Silicon Valley on this issue, perhaps because such toxic culture is particularly widespread in both industries, but we should not lose sight of the fact that sexual harassment can happen anywhere and that it is not necessarily restricted by gender. Either gender can be the perpetrator as well as the object of sexual harassment.
For instance, in the recent 2017 case of Shamani Devi Chendra Chekheren v Shangri-la Hotels & Resorts, the Industrial Court found that the female employee in question was proven to have, on a balance of probabilities, sexually harassed her male supervisor, and that consequently, the company was justified in dismissing the employee.
What happened in this case?
The female employee in this case had sent messages through Facebook and SMS to her male supervisor, some of which were sexually explicit. Below are some examples of the messages that were examined by the court:
- The employee describing how she had a dream of the company’s agents having gay sex.
- The employee stated to the supervisor that he was staring at the ass of another agent.
- The employee saying that each time she looked in the supervisor’s eyes, she cannot help but to think of sex.
- The employee asked the supervisor whether he was having an affair with anyone
- The employee saying to the supervisor: “U R MY UBBIE Always and Forever!!!“
The court referred to the 1999 Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“Code”), according to which sexual harassment is divided into two categories, namely, coercion and sexual annoyance. In particular, the court found that the second type of sexual harassment, sexual annoyance, was relevant in the case, and it is defined as:-
“… sexually-related conduct that is offensive, hostile or intimidating to the recipient, but nonetheless has no direct link to any job benefit. However, the annoying conduct creates a bothersome working environment which the recipient has to tolerate in order to continue working. A sexual harassment by an employee against a co-employee falls into this category. Similarly, harassment by a company’s client against an employee also falls into this category.”
Applying the definition provided in the Code, the court found that the first two examples given above amounted to sexual harassment as the employee had used vulgar and sexually-explicit words which were not only offensive but could cause sexual annoyance to the supervisor.
In respect of the employee telling the supervisor “U R MY UBBIE Always and Forever!!!“, the supervisor testified that the employee calling him “Ubbie” made him uncomfortable because it was unwanted attention and an unwanted nickname that was given to him without his consent.
“It is impossible to define sexual harassment in terms of specific act or behaviour because incidents of harassment are difficult to measure. Therefore, one has to look at the context, the surrounding circumstances that include the victim’s upbringing, culture and religious sensitivities, amongst others…. what might be offensive to one person might not be offensive to another.”
This is especially so considering the fact that it was undisputed that the word “ubbie” means “darling”, “sweetheart” or “honey”. Under certain circumstances, calling someone “sweetheart” may therefore arguably be a form of sexual harassment, especially where it is unwanted and makes the recipient uncomfortable.
Even though the Code does not have the force of law, the court referred to the Court of Appeal case (which was later affirmed by the Federal Court) in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor which said:
“The Malaysian Government had accepted that sexual harassment in the workplace, especially, is to be abhorred. In 1999 a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace was formulated by the Government and employers were urged to adopt it. While the Code has no force of law, it signalled in the change in the mindset of the authorities on sexual harassment in the workplace.”
Thus, it is likely that courts will continue to refer to the Code as guide where questions about sexual harassments are before the court.
This case is a timely reminder that:
- sexual harassment can take many forms and is not just limited to physical acts of a sexual nature; and
- our law does not distinguish between genders or employment ranking when it comes to determining whether sexual harassment has been committed. As such, it can be sexual harassment even if it is committed by a woman (against a man or another woman) or where it is committed by a subordinate against a supervisor or employer.
This article was written by Donovan Cheah (Partner) and Adryenne Lim (Legal Executive). Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017. He has written for publications such as the The Edge and the Star, as well as for the Malaysian-German Chamber of Commerce and Industry. Have a question? Please contact us.