Malaysia Employment Law : Sexual Harassment

WHAT IS SEXUAL HARASSMENT ?

Sexual harassment means any unwelcome verbal, non-verbal, visual, psychological or physical conduct of a sexual nature that might, on reasonable grounds, be perceived by the victim as placing a condition of a sexual nature on his or her employment because of his or her sex.

Sexual harassment may also consist of an unwelcome verbal, non-verbal, psychological or physical conduct of sexual nature that might, on reasonable grounds, be perceived by the victim as an insult or humiliation, or a threat to his or her well-being, and has no connection with his or her employment.

Sexual harassment in the office includes work related harassment which happens outside the office. Such work related harassment may includes situations taking place at work-related social gathering or functions, conferences, workshop or training sessions and during work assignments outside the office.

Sexual harassment in the course of work-related travel is also considered sexual harassment in the office. Where sexual harassment occurs as a result of employment responsibilities or relationship over the phone and through electronic media, it is also considered sexual harassment in the office.

ARE THERE DIFFERENT TYPES OF SEXUAL HARASSMENT ?

There are two categories of sexual harassment, namely sexual coercion and sexual annoyance.

Sexual coercion is known as quid pro qul sexual harassment in the United States.

Sexual Coercion is a type of harassment which has direct results in some consequence to the victim's employment. It is an employment discrimination.

Sexual coercion is under a condition of employment, where an openly or implicitly offer in keeping a job or getting a promotion is made by a supervisor to an employee in exchange for sexual favors. Such person normally has the power over promotion or raise of the employee.

In sexual coercion, promotion and favorable job benefits will follow if an employee takes the advantage and consented to sex. On the contrary, if the employee rejects, the job benefits are denied.

The second type of harassment - sexual annoyance is also known as hostile environment sexual harassment.

Sexual annoyance is a demeaning and unwelcome sexually related behavior that is offensive, hostile or intimidating to the victim, but has no direct connection to any job benefits. However, the annoying behavior creates an offensive working environment which affects the victim's ability to continue working.

Sexual annoyance includes sexual harassment by an employee against a co-employee. Similarly, sexual harassment by a company's customer against an employee also falls into this category.

Nevertheless, the definition of subjective words like unwelcome, offensive and annoying still leaves for individual interpretation by courts.