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EOC offers legal assistance in sexual harassment case
On 22 January 2021, the EOC issued legal proceedings under the Sex Discrimination Ordinance (SDO) in the District Court, on behalf of a woman (the Claimant) who worked as a dishwasher in a restaurant run by her previous employer (the First Respondent). She claimed that her former colleagues (the Second Respondent and Third Respondent), who worked as chefs in the restaurant, sexually harassed her in the workplace on a number of occasions by making sexually abusive remarks to her or in her presence; and that they had engaged in conduct of a sexual nature that created a hostile or intimidating work environment for her. She further claimed that the First Respondent was vicariously liable for their acts of sexual harassment because he failed to take any reasonably practicable steps to prevent these two employees from doing such acts.
In addition, the Claimant was dismissed by the First Respondent after she had made several internal sexual harassment complaints against the Second Respondent and the Third Respondent. She therefore claimed that she was victimised by the First Respondent.
Under the SDO, sexual harassment occurs if the harasser engages in any unwelcome conduct of a sexual nature in relation to the victim in circumstances in which a reasonable person would have anticipated that the victim would be offended, humiliated, or intimidated. Further, sexual harassment also occurs if the harasser, alone or together with other persons, engages in conduct of a sexual nature which creates a hostile or intimidating environment for the victim. Conduct of a sexual nature includes making a verbal or written statement of a sexual nature to the victim or in her presence.
Discrimination by way of victimisation occurs if an employer treats an employee less favourably because the employee has given information or evidence in connection with proceedings brought under the SDO or alleged that another person has contravened the SDO.
Sexual harassment between employees is unlawful under the SDO. An employer can also be held vicariously liable for the unlawful sexual harassment acts of an employee (whether or not done with the employer’s knowledge or approval) unless the employer can show that he/she has taken reasonably practicable steps to prevent the employee from doing the unlawful acts.
By taking this case to court, the EOC hopes to raise public awareness on the law on sexual harassment, and send a strong reminder to employers that they should take reasonably practicable steps to prevent sexual harassment from occurring in their workplace.
