We Need a Sexual Harassment Act

This week, the orthopaedic doctor at the centre of numerous sexual harassment complaints was suspended for two months, pending further investigation.

Meanwhile, last week, the aide to a deputy ministry was fired for sexually harassing an optician, while accompanying the deputy minister in the examination room.

These cases have garnered much public attention but they are simply the tip of the iceberg; for every case that is reported, many more go unreported.

When accountability mechanisms are weak, predators are emboldened to abuse their power and harass with impunity.

Our existing legal framework for sexual harassment is seriously flawed and fails to comprehensively protect against sexual harassment. Thus, we need to enact a Sexual Harassment Act.

Currently, we have the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, which provides guidelines for employers to handle sexual harassment cases internally. However, the code is voluntary, essentially allowing employers to choose whether to implement the framework or not.

There is also the Garis Panduan Mengendalikan Gangguan Seksual di Tempat Kerja Dalam Perkhidmatan Awam, but these are just guideline and only covers public sector employees.

The Employment Act mandates employers to investigate sexual harassment complaints. However, employers can choose not to investigate if they believe that the complaint is “frivolous, vexatious or is not made in good faith”. Consequently, such cases rely heavily on the goodwill of employers and highlight the issue of power imbalance.

Moreover, the Employment Act also does not outline the rights, remedies, and protections available to survivors during and after the investigation; the act simply requires employers to investigate complaints. And the Employment Act does not cover Sabah and Sarawak.

In 2016, the Federal Court introduced the tort of harassment when judging a landmark sexual harassment case involving two Tabung Haji employees. This means that victims could sue sexual harassers and potentially obtain compensation. However, it is very costly and time-consuming for survivors of sexual harassment to take up a civil court case. The court process is also public, which compromises the survivors’ confidentiality.

The limitations of the current legal framework demonstrate the need for Malaysia to enact a Sexual Harassment Act, which must include a number of provisions:

Firstly, the definition of sexual harassment must encompass all forms of sexual harassment, including verbal, visual, gestural, physical, and psychological harassment.

Secondly, the Sexual Harassment Act must cover not just the workplace but all settings — education institutions, public spaces, etc. — and also Sabah and Sarawak.

Thirdly, the Sexual Harassment Act must introduce mechanisms — such as an independent tribunal — to allow survivors to access justice quickly, cheaply, and privately. Additionally, the act must also require institutions to implement sexual harassment policies.

Ensuring robust legal protection against sexual harassment is crucial, as it sends the message that sexual harassment is never acceptable.

In tandem with enacting laws, we also need to change norms and allow survivors to voice their experiences.

Discussions about sexual harassment alarmingly often veer into victim-blaming. According to a Harvard Business Review article, individuals often perceive victims of sexual harassment to be irrational — a perception shaped by the stereotype that women are irrational and highly emotional. Individuals also tend to reframe victims as threats and perpetrators as innocent victims, which perpetuates the culture of victim-blaming. This underscores the need for us to also change mindsets.

The article also highlights how sexual harassment policies must include bystander intervention — the sharing of responsibility between survivors and bystanders to report sexual harassment. This way, everyone has a role to play in changing the culture that enables sexual harassment.

It’s time we take concrete steps to holistically combat sexual harassment. Let’s begin by enacting a Sexual Harassment Act to ensure that survivors have access to the justice they deserve.