Sexual harassment refers to any unwelcome conduct of a sexual nature that interferes with the performance or affects the enjoyment of students in their learning environment. The behavior does not need to be directly or consciously targeted at an individual student. Examples of this form of sexual harassment include, but are not limited to, the display of explicit or pornographic materials, sexual banter, crude conversation, and sexually offensive jokes or activities.

Following are some scenarios of creating a hostile or intimidating environment in schools:

• Using sexually suggestive cartoons to teach a subject not related to sex.
• During recess and/or lunchtime, a group of students hang out in the playground and rate female students who are playing, chatting, or staying there, causing some female students to avoid the playground.
• In the staff room where there are both female and male colleagues, some colleagues display nude pictures as screensavers on the computer.
• Staff members making sexual jokes or discussing their sex lives within earshot of other staff/students on the school premises.
• A group of students hijacking classroom discussions and turning them into sexual topics, causing students of the opposite sex to feel offended and not want to join the discussion. 

Sexual harassment is considered unlawful and can result in civil liability. Additionally, certain behaviors such as indecent assault, stalking, prank calls, and others can also have criminal consequences.

It’s important to note that students, staff, volunteers, contract workers, service providers, and agents of a school can be held personally liable under the law for acts of sexual harassment. Personal liability may also be incurred if a person instructs someone to sexually harass another, or knowingly aids another in sexual harassment, such as by joining in telling obscene jokes.

Schools are required to take “reasonably practicable steps” to prevent sexual harassment. If they fail to do so, they may be held vicariously liable for the unlawful acts of sexual harassment committed by their employees during the course of their employment, even if the schools are unaware of the incidents of sexual harassment.

“Reasonably practicable steps” are not defined in the Sex Discrimination Ordinance (SDO) and are determined on a case-by-case basis. Each school’s situation varies in scale, resources, and human resources management.

In principle, “reasonably practicable steps” should include formulating and promoting a policy on preventing sexual harassment, organizing seminars and training activities, developing a comprehensive complaint mechanism, and providing education, training workshops, and support for staff and students to create a supportive school culture to prevent sexual harassment. It is the responsibility of the school to actively implement preventive measures to avoid liability when sexual harassment occurs.

A school would generally not be held vicariously liable for unlawful acts committed by students, as they are not employees or agents of the school. However, a school may incur direct liability under certain circumstances.

If a complaint of sexual harassment is received regarding students in an extracurricular activity, and the school takes no action, it could create a sexually hostile environment for other students, which is prohibited under the SDO.

If a school hires a coach as an “agent” for extracurricular activities, the school is considered the “principal.” The school may be held responsible for the coach’s actions if it fails to take steps to prevent sexual harassment.

To demonstrate the school’s commitment to addressing sexual harassment, the school management committee should consult with parents, teachers, and staff when formulating a comprehensive policy. This will make the policy open and transparent and enhance stakeholders’ acceptance of the policy.

Each school has its own unique background, so a sexual harassment policy that works for one school might not work for another. Schools should develop their own policy for preventing sexual harassment based on our suggested framework, taking into consideration their specific situation, such as their size, resources, and how they manage their staff.

A school’s sexual harassment policy should include the following elements:

• A statement expressing the school’s concern about and commitment to addressing sexual harassment.
• Clear definitions of what constitutes sexual harassment, both legally and behaviorally.
• Information about how to file a complaint within the school, including the contact details of the person in charge, or an option for the complainant to file a complaint directly with the Equal Opportunities Commission (EOC) or take legal action.
• A commitment to maintaining confidentiality and preventing victimization related to complaints.
• A brief explanation of the school’s investigation procedures and the disciplinary actions that will be taken if a complaint is substantiated.

Once a policy has been established, schools should regularly review and monitor it to ensure effective implementation and up-to-date information. Additionally, schools should remove offensive materials, prevent inappropriate use of technology, and designate a coordinator to handle staff complaints and resolve sexual harassment issues.

To improve staff understanding and awareness of sexual harassment, schools should:

• Provide the policy statement and other relevant information on sexual harassment to new staff as a standard part of their induction.
• Distribute or restate the policy statement to staff for discussion or reinforcement at regular staff meetings.
• Include the procedures and guidelines for reporting, receiving, and filing complaints in the staff handbooks and contracts with service providers.
• Conduct awareness-raising sessions for general staff on sexual harassment issues.
• Encourage the persons and/or teachers appointed for handling sexual harassment complaints to receive appropriate training to enable effective treatment of such cases.

Schools should include sexual harassment in sex education, personal growth education, and class teacher periods to help students develop positive values and attitudes, raise awareness about sexual harassment, and encourage them to seek help when necessary.

To prevent sexual harassment, schools should provide counseling activities tailored to students’ personal and social needs, promoting positive values like gender equity and respect for others. When students develop awareness of these values, they can think critically, solve problems, and form respectful relationships.

To effectively disseminate the message of preventing sexual harassment in secondary and primary schools, the EOC has commissioned a professional drama group to stage drama performances in schools on this issue.

Schools may contact the drama group “Forest Union” at 2404 7288 or email at  forestunionxp@yahoo.com.hk for arranging drama performances on the topic of sexual harassment.

• The EOC launches an online self-learning training module on sexual harassment to enhance teachers and students’ understanding of sexual harassment.
• Free talks and consultancy services are provided by the EOC, visit our training page to learn more.
• Apart from organising free talks on the four anti-discrimination ordinances, the EOC will provide customised fee-charging training workshops on understanding and preventing sexual harassment for school teachers and staff on request. Schools may dial 2106 2222 for further details.

The EDB will organise training programmes on sex education for serving principals and teachers from time to time. Details and registration will be uploaded onto the Training Calendar on the EDB’s homepage.

The purpose of conciliation is to help the involved parties reach a resolution that is mutually acceptable with the help of an impartial third party. Conciliation should be voluntary and maintain an open and fair approach to ensure equitable treatment for both parties.

The followings are the basic principles in handling sexual harassment complaints:

• The way that complaints will be handled should be documented in the school policy or a separate complaint procedure.
• All information and records related to a complaint of sexual harassment must be confidential and only be circulated to relevant staff on a need-to-know basis.
• Complaints should be handled promptly to ensure that they are quickly resolved.Complainants should be protected against victimization (which in itself is an unlawful act of discrimination under section 9 of the SDO) and all parties involved should be treated fairly.
• In the process of handling a complaint, schools should avoid causing unnecessarily further distress and humiliation for the complainant.
  Care should be taken in handling complaints so as not to cause unnecessary distress to other people involved.
• Schools should handle cases of suspected sexual harassment for students or young children in discreet. Whether the complaints are anonymous or not, schools may need to conduct an investigation.
• Schools should incorporate the handling procedures related to sexual harassment complaints in their school-based complaint policy and make them known to all staff and other workers in the school. For complaints involving students, the school should ensure that both the students and parents understand the rules and disciplinary measures.

After receiving a complaint, the school coordinator should take the following major procedures to handle the complaint:

• Activate internal procedures for dealing with complaints of sexual harassment;
• Keep all information and records related to the complaint of sexual harassment confidential;
• Inform the alleged harasser of the details of the allegation(s);
• Tell the complainant and the alleged harasser how the investigation will be conducted and who is responsible for the investigation;
  If necessary, make arrangements to avoid contact between the complainant and the alleged harasser during the investigation;
• Provide support and counselling, where necessary, including providing parents/ students/ staff with information about sexual harassment and clarifying any questions or concerns they may have, e.g., what they should do when they are sexually harassed;
• Interview the complainant; if the complainant is a student, he/she is entitled to be accompanied by their parents or relatives;
• Interview the alleged harasser; if the complainant is a student, he/she is entitled to be accompanied by their parents or relatives;
  Interview or obtain written statements from witnesses concerning the complaint;
• Study the evidence and make decisions;
• Prepare a written report and inform the relevant parties of the investigation results in writing;
• Seek advice from the EOC where necessary;
• Decide whether or not disciplinary measures or other appropriate actions should be taken.

The details of a sexual harassment complaint should only be shared with relevant parties on a need-to-know basis. It is important to inform the alleged harasser about the details of the complaint, as they are a key person in the case and to ensure fairness in the process based on the principles of natural justice.

Schools should consult the EOC or other relevant organisations, such as the police, when they suspect cases of child abuse. If a suspected case of child abuse is found, schools should follow the principles and procedures outlined in the Procedural Guide for Handling Child Abuse Cases (Revised 2007), which was issued by the Social Welfare Department in January 2008. This is to protect the interests of the students and reduce the risk of them suffering from abuse.

According to the Procedural Guide, if a child is suspected of being sexually abused, the school should consult the Family and Child Protective Services Unit of the Social Welfare Department or the Child Abuse Investigation Unit of the police and follow appropriate handling procedures. In cases suspected to involve criminal offenses, schools should report to the police.

There are specific time limits for filing a complaint with the EOC and initiating legal proceedings. If someone has experienced sexual harassment and wants to file a written complaint with the EOC, they must do so within 12 months of the incident taking place. Any decision to take legal action in the District Court must be made within 2 years of the incident occurring. Schools may establish a reasonable time limit, taking into account their circumstances and any difficulties in conducting investigations and collecting evidence that may arise from delays in addressing complaints.

Schools have the responsibility to cultivate a sexual harassment-free working and learning environment. Schools should take reasonably practicable steps to prevent unlawful acts as well as handle sexual harassment complaints properly to safeguard the interest of staff and students. Although sexual harassment is a tort, aggrieved persons may decide to lodge a complaint with the EOC or take legal action directly. If the aggrieved person is sexually harassed during his/her employment or in an educational setting, he/she may request the employer or the education establishment to handle the case.

If the employer or the education establishment ignores the problem, they may be considered as failing to take “reasonably practicable steps” and vicariously liable for the unlawful acts. If the alleged harasser is a student, apart from taking fair and reasonable disciplinary measures set out in the school policy, more importantly, schools should provide counselling to help students get rid of improper behaviour. Schools should also note that failing to handle complaints seriously and taking disciplinary actions against the offender may be taken as tolerance of sexual harassment in schools. If the school considers that the complaint may involve criminal offences, they should report to the Police as soon as possible.