Sexual Harassment in Malaysia

SEXUAL HARASSMENT IN MALAYSIA Sexual harassment is a serious offense, such offense often happen to woman especially in a workplace where majority employees are male or often the employer to the female worker is a man. In Malaysia, sexual harassment victims are usually the female workers. Sexual harassment could be anything from a verbal harassment, making inappropriate remarks, suggestion inappropriate stuff towards a female employee. Sexual harassment could also be persistent flirting and making distasteful inappropriate body contact like light touching, pinching, patting, hugging and fondling. It is surprise to know that Malaysia does not have a law specifically for combating sexual harassment in workplace until the amendment done on Employment Act 1955 in 2012. Before that, sexual harassment is governed by a code of practice called the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace. This code of practice was introduced by the Ministry of Human Resources after the issue of sexual harassment has reached to its peak, forcing the authority to come out with this solution as the only law before this code is Section 509 of the Penal Code which reads “Whoever, intending to insult the modesty of any women, utters any words, makes any sound or gesture or exhibit any object, intending that such word or sound shall be heard, or such gesture or object shall be seen by such woman, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or with both”. Section 509 Penal Code only deals with sexual harassment in the physical aspect, that means making inappropriate remarks does not amount to sexual harassment.[1] Clearly by the enforcement of this law alone is not sufficient to combat this issue and eventually pressured the Ministry to produce such code of practice. This Code offers a much more practical rule for employers and employees to follow in the protection of the employee from sexual harassments. This Code also provides a far wider definition of sexual harassment. It is stated in article 4 of the Code that “Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to her/his employment”.[2] This definition is indeed an improvement compare to the Penal Code’s Section 509 which only covers physical aspect of sexual harassment, by this Code, those suffers from verbally harassment and psychological harassment are protected. Furthermore, this Code had distinguished sex harassment into two categorized which is sexual coercion and sexual annoyance. According to article 5 of the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, sexual coercion is where an employer took advantage of his or her position to coerced the employee for sexual favors which if the employee refuses to execute those favors might be put in a position where they loses their job or benefits in the workplace. As for sexual annoyance, it’s where the victim is subject to offensive harassment which causes annoyance for the victim and it distracts the victim from performing their job properly. This category usually falls between employee to employee and sometimes between client to employee.[3] This Code also provides protection for employees outside of the workplace due to the job requires the employee to work outside. Article 6 of the Code explains that circumstances under which such employment-related sexual harassment may occur incorporates, yet is not limited to: (i) at work-related social capacities; (ii) over the span of work assignment outside the working environment; (iii) at work-related meetings or preparing sessions; (iv) throughout work-related travel; (v) via telephone; and (vi) through electronic media Next, after the introduction of the Code, another problem arose which is that the Ministry has no legal force to pressure all companies into adopting the Code, thus the amendment to the Employment Act 1955 was proposed by the Ministry of Human Resource in 2010 to give legal backing to the Code to combat sexual harassment more effectively and to give legal acknowledgement of the sexual harassment outside of workplace.[4] The proposal was to amend the Section 2 of the Employment Act 1955 to introduce a new definition for the term sexual harassment into as any unwanted behavior of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, steered at an individual which is infuriating or humiliating or is a threat to his prosperity emerging out of and over the span of his employment. This definition is different compare to the definition given in the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace which reads “any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to his/her employment.”[5] Plus the proposed amendment plans to include Section 81G which will enforce on all employee under any contract of service. In addition, the proposed of Section 81B, makes it a compulsory responsibility for all employers to set up a channel to investigate all allegations regarding sexual harassment between employees and employers.[6] This section also demands that a complaint is to be inquire in a manner prescribed by the Minister. The proposed amendments of Employment Act 1955 demands that the employers whom failed or refused to investigate the complaints made, the employers must within 30 days let the person who made the complaints the reason why the complaints was not investigated in written form. This proposed amendment is a very positive proposal, it could effectively help the victims that did not get closure over the harassment that happened to them, an explanation to the victim could help them not feel like injustice has been done upon them. In 2012, finally, the amendment has pass through the Parliament and was enacted in 1st April 2012, a new law on sexual harassment was introduced where an employee can make a complaint against another employee or against the employer, the new law also allows the employer to made sexual harassment complaint against their own employees as well. The new laws had made it compulsory for the employers to investigate all the sexual harassment complaints and impose punishment to the employee if found guilty.[7] Conclusion is, Malaysia’s sexual harassment law are in slow pace in the growing process, more can be done to provide better protection against sexual harassment. Such amendment on the Employment Act 1955 are just a small step into protecting the people and it is a positive beginning on the betterment of the laws of sexual harassment.

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[1] Lee Li Hoong (2011). Dealing with Sexual Harassment in the Workplace. [ONLINE] Available at: https://www.skhttps://www.skrine.com/dealing-with-sexual-harassment-in-the-workplacerine.com/dealing-with-sexual-harassment-in-the-workplace. [Last Accessed 24 April 14]. [2] Kementerian Sumber Manusia (2014). CODE OF PRACTICE ON THE PREVENTION AND ERADICATION OF SEXUAL HARASSMENT IN THE WORKPLACE. [ONLINE] Available at: https://www.mylabourlaw.net/quick-guides/36-sexual-harassment.php. [Last Accessed 24 April 14]. [3] Kementerian Sumber Manusia (2014). Code Of Practice on the Prevention and Eradication Of Sexual Harassment In the Workplace. [ONLINE] Available at: https://www.mylabourlaw.net/quick-guides/36-sexual-harassment.php. [Last Accessed 24 April 14]. [4] Alagappar, P.N. & Marican, S, (2013). Media Coverage of Sexual Harassment in Malaysia: A Content Analysis Case Study. International Proceedings of Economics Development and Research. 64 (4), pp.17-21 [5] Kementerian Sumber Manusia (2014). Code Of Practice on the Prevention and Eradication Of Sexual Harassment In the Workplace. [ONLINE] Available at: https://www.mylabourlaw.net/quick-guides/36-sexual-harassment.php. [Last Accessed 24 April 14]. [6] Ismail, M.N. & Lee, K.C. & Chan, F.B., (2007). :Factors Influencing Sexual Harassment in The Malaysian Workplace. Asian Academy of Management Journal. 12 (2), pp.15-31 [7] T. Balasubramaniam (2012). LABOUR LAW AMENDMENTS: Little awareness of changes. [ONLINE] Available at: https://www.nst.com.my/opinion/letters-to-the-editor/labour-law-amendments-little-awareness-of-changes-1.73562. [Last Accessed 25 April 14].

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