Sexual harassment in the workplace is not harmless play but an offensive and unlawful act. Mohan Datwani FCIS FCS(PE), Senior Director and Head of Technical & Research of the Institute, and Member, Equal Opportunities Commission, highlights the need for organisations in Hong Kong to adopt anti–sexual harassment policies.

The Equal Opportunities Commission (EOC) is a statutory body dealing with sex, disability, family status and race discrimination in Hong Kong. The EOC aims to eliminate related discrimination, harassment and vilification, including sexual harassment under the Sex Discrimination Ordinance (SDO) Parts 3 and 4. The largest number of complaints that the EOC receives on a recurrent basis relates to sexual harassment. These include sexual harassment at the workplace. The recent media attention in the US and elsewhere will no doubt precipitate an increase in sexual harassment complaints by harassed persons, including at the workplace, as they learn of their rights from high-profile events. For an organisation where allegations of sexual harassment at the workplace takes place, this can tarnish its hard-earned reputation. This is especially the case in this age of instantaneous social media where bad news travels fast. There are also potential vicarious monetary liabilities, which can be especially harsh on small and medium-sized enterprises. It is therefore in the interests of an organisation, whether large or small, from a risk perspective, to adopt an anti–sexual harassment (ASH) policy and to enforce it. The EOC will soon be launching a promotion campaign urging companies to adopt ASH policies. The company secretary as governance adviser can advise the board to recognise this trend as this is also an environmental, social and governance (ESG) concern.

What is sexual harassment?

The EOC explains the concept of sexual harassment under the SDO in its ‘Know Your Rights (Sexual Harassment in the Workplace)’ guidance. It dispels the common misconception that sexual harassment only applies to harassers within an organisation, for example, a boss or a co-worker. In fact, the concept also applies to external harassers, including service providers and customers. Conduct that could amount to sexual harassment extends to the following.

• The harasser saying something sexual to the victim as to the way the victim looks which is offensive or intimidating to the person concerned.
• The harasser touching the victim sexually when this is not wanted.
• The harasser acting in a sexual manner unwelcome to the victim.
• The harasser making sexual jokes or doing things to or around the victim that is not liked.
• The harasser showing or putting up pornographic pictures which embarrasses the victim at work.
• The harasser harassing the victim while providing the person with goods, facilities or services.

It should be mentioned that if two persons are involved in a consensual relationship, then there is no issue of sexual harassment. The difficulty is that when the relationship sours the consensual relationship can end. This situation can be a grey area and lead to allegations of sexual harassment. There are people choosing to leave the workplace before commencing a sexual relationship, or to seek to transfer to another department to avoid the issues arising from being too close within the same workplace. However, it is for the parties to consider their own best interests. For the organisations, from a governance point of view, they may need to put in place arrangements where two members of staff enter a relationship, for example where they are both bank authorised signatories. The organisation will need to maintain proper risk management procedures.

What is the legal position?

From a legal perspective, under the SDO, there are two limbs to the definition of sexual harassment. The first limb refers to unwelcome sexual advances or requests for sexual favours to another person; or engagement in conduct of a sexual nature in relation to that other person where a reasonable person having regard to the circumstances would be offended, humiliated or intimidated. This first limb relates to situations where there is a specific targeted person. The second limb extends to conduct of a sexual nature which creates a hostile or intimidating environment, including where there is no specific targeted person. For example, if a group of colleagues make dirty jokes in the office and everyone enjoys that, this is not unwelcome and there would be no sexual harassment under the first limb. However, if another member of staff in the office overhears the jokes, even though the jokes were not directed at that member of staff, he or she can lodge a complaint of sexual harassment under the second limb in respect of the statements of a sexual nature. A victim of sexual harassment may seek the EOC’s conciliation and legal assistance where that fails. At all times, the victim can, with the help of the EOC or otherwise, directly make a civil claim at the District Court, including for a declaration as to the unlawful nature of the act; claim for loss or damages, which can include damages as to injury in feelings; reinstatement and promotion; and punitive or exemplary damages (see SDO, Section 76). These are in addition to any criminal complaints to the police. In Yuen Sha Sha v Tse Chi Pun [1991] 1 HKC 731, videotaping without consent during undressing was found to be sexual and unwelcome conduct under the SDO. In Insitu Cleaning Co Ltd v Heads [1995] IRIL 4, a manager who greeted an employee with ‘Hiya Big Tits’ was found to be engaged in sexual harassment, as with Aldridge v Booth [1988] 80 ALR, where an employee tolerated sexual intercourse for fear of being dismissed. In L v David Roy Burton DCEO 15/2009, numerous sexual advances were made against the victim, and when rejected, the victim was forcefully grabbed and bruised at the wrist. The court found sexual harassment under the SDO and awarded approximately HK$200,000 in damages, including injury to feelings of $100,000; loss of earning at around $80,000; and exemplary damages of $80,000. The refusal to settle or to apologise during EOC conciliation was taken into consideration by the court for an award of cost in favour of the victim.

Drafting an anti–sexual harassment policy

As part of good governance, the company secretary should recommend that the organisation concerned adopt an ASH policy. As there is ‘no one-size fits all’ for policy documents, the EOC has not provided sample policies, but rather the framework for creating such policies. The EOC's ‘Preventing Sexual Harassment in the Workplace Formulating Corporate Policy on Sexual Harassment’ makes it clear that sexual harassment is not harmless play but an offensive unlawful act. The consequences can be costly, and lead to emotional stress, anxiety and even depression for the victim. Also, not only the harasser, but the organisation can be vicariously liable under the SDO. The process of formulating an ASH policy can provide organisations and management with a deeper understanding of anti–sexual harassment measures, and proper consultation with employees can enhance the buy-in to the ASH policy. The ASH policy, which company secretaries can help their organisation adopt, should include the elements listed below. 1. Zero tolerance for sexual harassment. The policy needs to state that everyone has the right to be respected and be equally treated, and that sexual harassment is discriminatory and unlawful. Sexual harassment may lead to disciplinary measures by the organisation and may also entail civil liability and even criminal consequences. Once an act of sexual harassment has occurred, any person in the organisation has a right to lodge a complaint. The determination of the organisation to eliminate and prevent sexual harassment should be clearly conveyed – there needs to be a clear statement that sexual harassment will not be tolerated in the organisation. 2. Punishment. The policy should state the specific disciplinary measures to which sexual harassment acts could lead and what the maximum penalty is, for instance making apologies, attending counselling sessions, paying compensation, being dismissed, etc. Actions that could be taken by the organisation should also be stated. For instance, if the case involves criminal offences, the organisation will report it to the police. 3. Objectives and responsibilities of the employer and management. The objectives of the policy should be listed so that all parties in the organisation have a clear understanding of them. These include creating a safe and sexually hostile–free environment, requiring training; establishing channels to lodge complaints and to handle them in a fair, impartial and confidential manner; and providing protection to complainants. 4. Obligation and responsibility of employer and all employees. The policy should make it clear that the management and employees all have the obligations and responsibilities to eliminate sexual harassment, including to respect the will and feelings of others, refusing to tolerate sexual harassment, and supporting co-workers to take reasonable steps to stop sexual harassment. When any sexual harassment is witnessed, it should be reported. 5. Rights of the victim and various actions to be taken. The policy should explain that every person has the right to lodge a complaint relating to sexual harassment and to take the actions outlined below.

• Speak up at the time to tell the harasser that his/her act is unwelcome and should be stopped immediately.
• Keep a written record of the incidents, including the dates, time, location, witnesses and nature (what the harasser has said or done) and the victim's own response.
• Tell someone the victim trusts and ask for emotional support and advice.
• Lodge a formal or informal complaint to the employer/management.
• Lodge a complaint with the EOC and request investigation or conciliation (see 'Contacting the EOC' box text for contact information). In case conciliation fails, the complainant may request the EOC to provide legal assistance.
• Consult a lawyer, report to the police or file a civil law suit against the harasser.

It should be clearly stated that the complaint handling procedure does not affect the complainant's lodging complaints with the EOC, reporting to the police or filing a lawsuit in the District Court. 6. Principles of handling sexual harassment complaints. The policy should detail the matters outlined below.

• Fairness. Enquiries and complaints should be handled in a just and impartial manner to ensure that the complainant and the alleged harasser are fairly treated, and both parties have chances to present their case.
• Confidentiality. Assurance should be given to all employees that all information and records related to a sexual harassment complaint must be confidential and only be disclosed to relevant staff on a need-to-know basis. Since the alleged harasser is a key person in the case, under the principle of natural justice, he/she should be informed about the details of the allegation.
• Avoiding any delay. Complaints should be handled promptly because both the complainant and the alleged harasser are under pressure. The employer/management or the person in charge of handling complaints should deal with the case without any delay.
• Transparent procedures. Companies should incorporate the handling procedures related to sexual harassment complaints in their complaint policy/sexual harassment policy and make them known to all staff and other workers in the organisation.
• Protection for complainants and witnesses. Complainants and witnesses should be protected against victimisation (which is an unlawful act of discrimination under Section 9 of the SDO) because of the complaint case.
• Avoid conflict of interest. If the employee who handles the enquiry/complaint case is closely related to the complainant or the alleged harasser (for instance, relatives), or the alleged harasser is the person in charge of handling sexual harassment complaints, the case should be handled by another person.
• Anonymous complaint. Whether the complaints are anonymous or not, companies may need to make inquiries or to conduct an investigation. If the complainant is a minor, the case should be handled more discreetly.
• Handling cases discreetly. Measures to ensure that the complainant is not unnecessarily distressed or humiliated should include: showing empathy to the feelings of complainants; avoiding asking the complainant to repeat his/her painful story; and appointing investigators of the same sex to interview the complainant. Complaint cases should be handled discreetly so that related parties are not unnecessarily distressed.

7. Mechanism for handling sexual harassment complaints.

• The policy should establish other informal and formal complaint handling mechanisms for sexual harassment complaints. If the primary concern of the complainant is to stop the acts of sexual harassment as soon as possible by way of taking informal action (for example, sending a clear message to the alleged harasser) instead of investigating his/her case, the complaint will be handled informally. The informal complaint handling mechanism is suitable for handling minor and single incidents rather than serious and repeated acts of sexual harassment.
• If one party does not accept the investigation result, as a principle of natural justice, appeals to senior level of management should be allowed.
• Sexual harassment acts may also amount to criminal offences such as indecent assault and distribution or display of indecent and obscene articles. The organisation may consider referring those cases to the police.

8. Time bar for lodging a complaint. The policy should explain that if the person who is sexually harassed intends to lodge a complaint with the EOC, he/she should act within 12 months after the incident occurred. Otherwise, the EOC will not handle the case unless there are justifiable reasons for the delay. Any decision to take legal proceedings to the District Court should be made within two years after the incident occurred. 9. Definition of sexual harassment. There should be a definition of sexual harassment, and clear statements that sexual harassment can take place regardless of gender; intention is irrelevant. The above is a high-level summary of the complex areas relating to sexual harassment. It is hoped that organisations can seriously consider adopting an ASH policy based on the facilitation by the company secretary as a governance professional, and the EOCs resources. Mohan Datwani FCIS FCS(PE) Senior Director and Head of Technical & Research of the Institute, and Member, Equal Opportunities Commission More information is available on the Equal Opportunities Commission (EOC) website: www.eoc.org.hk. The EOC's ‘Preventing Sexual Harassment in the Workplace Formulating Corporate Policy on Sexual Harassment’ is available at: www.eoc.org.hk/eoc/upload/2013116173927302019.pdf.