Sex Discrimination Case

Working in Fear

The complaint

"I thought about quitting, but why should I be paying for something I didn't do? I can’t put up with this anymore!" Stephanie started working as a secretary with a small graphic design company four years ago, but the unacceptable behaviour of her boss, Mr Lee, made it difficult for her to attend work lately.

"I have had enough of his offensive and disturbing remarks. On one occasion he said he wanted to cuddle me like his daughter. On another occasion he asked me to marry him to be his second wife. Often, he commented on my sexual attractiveness, and I just had to grin and bear it," Stephanie told the EOC investigator.

"It got to the point that I told him I was extremely distressed by his sexually-suggestive comments, and I resigned. He apologized and promised that he would mind his language. I took his word for it and withdrew my resignation. Then he stopped acting inappropriately, but recently, his behaviour turned for the worse."

Stephanie recalled, "One night when I was alone with him in the office, he crept up behind me in the pantry, and tried to grab me. Then he pulled me down to his knees, but I got away. A few days later, he made another attempt when we were working outside the office. He purposely brushed against my back and started playing with my ear lobes. I was utterly petrified!"

What the EOC did

Stephanie filed two complaints with the EOC; one against Mr Lee for individual liability of sexually harassing her and the other against the company for vicarious liability of Mr Lee’s acts of sexual harassment. The parties involved agreed to resolve the dispute by early conciliation.

Mr Lee admitted that he had made comments about the appearance of both male and female staff, but he denied the other allegations. He said, "I never had the intention of hugging her, but my gentle pat on her shoulder might have appeared that way. I think she was just over-sensitive."

"These incidents have posed a grave impact on me emotionally. I have been seeing a psychologist since the end of last year because of insomnia, nausea and migraines. In view of my health condition, I had to quit my job, and that imposed a financial burden on me," Stephanie expressed her concern at the meeting.

The dispute was finally resolved, and the settlement terms included a good reference letter and a monetary compensation for Stephanie.

What the law says

Under the Sex Discrimination Ordinance (SDO), sexual harassment in employment is unlawful. In very simple terms, sexual harassment is unwelcome behaviour of a sexual nature, which can be verbal or non-verbal. The assessment on "what is unwelcome" is based on relevant circumstances in which a reasonable person would feel intimidated or offended. The harasser could make an unwelcome sexual advance, such as physical contact, or sometimes it could take the form of an unwelcome request for a sexual favour. Innocuous comments, e.g. about a woman's appearance, could be offensive if the utterance, coupled with relevant circumstance, such as the place and manner of speech, could result in the creation of a sexually hostile environment.

In practical terms, the trigger point is the subjective feeling of the victim, who feels that she or sometimes he, has been offended, humiliated or intimidated. Sexual harassment interferes with a person's work performance, it can cause stress and loss of confidence. Sometimes, it forces people to leave their jobs.

Apart from individual liability, an employer is vicariously liable for unlawful discrimination or harassment done by its employees in the course of employment, unless the employer could demonstrate having taken reasonable and practicable steps to prevent discrimination and harassment from happening in the workplace.