What is meant by “sexual harassment”?
According to the Sex Discrimination Ordinance (SDO), the legal definition of “sexual harassment” includes the following situations:
- any person
a. makes unwelcome sexual advances, or an unwelcome request for sexual favours, to another person; or
b. engages in other unwelcome conduct of a sexual nature in relation to that other person;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that that other person would be offended, humiliated or intimidated; or
- any person, either alone or together with other persons, engages in a conduct of a sexual nature which creates a hostile or intimidating environment for another person.
The SDO and the sections related to sexual harassment apply to both men and women. Under the SDO, it is unlawful to sexually harass persons of the opposite sex, as well as, of the same-sex. Section 2(5) of the SDO defines sexual harassment while sections 2(7), 2(8), 9, 23 and 39 of the SDO are the related sections.
What is not sexual harassment?
Interaction of a sexual nature, flirtation, attraction or friendship which is invited, mutual, consensual and reciprocated is not sexual harassment.
In what forms does sexual harassment usually take place?
Sexual harassment can involve physical, visual, verbal or non-verbal conduct of a sexual nature which is uninvited and unwelcome.
If an allegation involves only a single incident, can it amount to sexual harassment?
Unwelcome behaviour needs not to be repeated or continuous. A single incident can also amount to sexual harassment.
What are sexual harassment acts?
The following are some examples of sexual harassment acts:
- Uninvited physical contact or gestures
- Unwelcome requests for sex
- Sexual comments or jokes
- Intrusive questions or insinuations of a sexual nature about a person’s private life
- Displays of offensive or pornographic material such as posters, pinups, cartoons, graffiti or calendars
- Unwanted invitations
- Offensive communications of a sexual nature (letters, phone calls, faxes, e-mail messages, etc.)
- Staring or leering at a person or parts of his/her body
- Unwelcome physical contact such as massaging a person without invitation or deliberately brushing up against him/her
- Touching or fiddling with a person’s clothing e.g. lifting skirts or shirts, or putting hands in a person’s pocket
What liability would an individual bear if he/she commits sexual harassment?
Sexual harassment, which is an unlawful act, would entail civil liability. Some behaviour (such as indecent assault, stalking, crank calls, etc.) would also bear criminal consequences at the same time.
Students and staff, voluntary helpers, contract workers/ service providers/ agents of a school are personally liable under the law for their acts of sexual harassment. Personal liability may also be incurred if a person presses/ instructs someone to sexually harass another, or knowingly aids another in sexual harassment (e.g. joining someone in telling obscene jokes).
What are “reasonably practicable steps”?
“Reasonably practicable steps” are not defined in the SDO and are determined on a case by case basis.
In principle, “reasonably practicable steps” should include formulating and promoting a policy on preventing sexual harassment, and organising seminars and training activities to raise the awareness of contract workers/ service providers/ agents, etc. on preventing sexual harassment.
In other words, apart from formulating a school policy on preventing sexual harassment, your organisation should develop a comprehensive complaint mechanism to handle such cases. Besides, education, training workshops and support for staff and students should be provided to promote gender equality, to create a gender-friendly environment and a supportive culture to prevent sexual harassment. It is the responsibility of the organization to demonstrate that preventive measures have been actively implemented to avoid liability when sexual harassment occurs.
What are the rights of persons who are subjected to sexual harassment?
If a person feels being harassed in an applicable field, he/she can lodge a written complaint to the Equal Opportunities Commission (EOC). The EOC will investigate the complaint, and endeavour to settle it by conciliation. If conciliation is not successful, the complainant can apply to the EOC for legal assistance. Applications for legal assistance are decided by the EOC’s Legal and Complaints Committee (LCC).
What should a person do if he/she feels being sexually harassed?
If a person feels being sexually harassed, he/she may adopt the following informal or formal approaches/ strategies:
- Speak up at the time. Tell the harasser that his/her behaviour is unwanted and has to stop.
- Tell someone he/she trusts, such as his/her colleagues or family, for emotional support and advice.
- Keep a written record of the incidents, including the dates, time, location and witnesses and own response.
- Lodge a formal complaint with the designated personnel or channel.
- Lodge a written complaint with EOC.
- Report to the police and/or file a civil lawsuit against the harasser.
What are the protections under the SDO for complainants who have made or intend to make a sexual harassment complaint?
According to section 9 of the SDO, if a person is subjected to any detriment or threat of detriment because he/she:
- has made, or intends to make, a sexual harassment complaint under the SDO;
- has furnished, or intends to furnish, information or documents about sexual harassment;
- has appeared, or intends to appear as a witness in a sexual harassment proceeding; or
- has reasonably asserted his/her own or another person’s rights under the SDO.
He/she is protected under the law and may lodge a complaint on the ground of victimisation.
Is there a time limit for sexual harassment complaint?
There are time limits for lodging a complaint to EOC and instigating legal proceedings.
If a person who has been sexually harassed wants to lodge a written complaint with EOC, he/she should do it within 12 months after the incident has taken place. Any decision to take legal proceedings to the District Court should be made within 24 months after the incident has taken place.