EOC Gives Legal Assistance in a Sexual Harassment Case
The Equal Opportunities Commission (EOC) has today (22 January 2021) issued legal proceedings under the Sex Discrimination Ordinance (SDO), Cap. 480 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 the aforementioned sexual conduct of the Second Respondent and the Third Respondent also created a hostile or intimidating work environment for her. She further claimed that the First Respondent, as the employer of the Second Respondent and the Third Respondent, was vicariously liable for their acts of sexual harassment because he failed to take any reasonably practicable steps to prevent them 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 victimized by the First Respondent for the reason that she had made the internal complaints.
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 victimization occurs if an employer treats an employee less favourably by reason that the employee has given information or evidence in connection with proceedings brought under the SDO or alleged that another person has contravened the SDO.
The SDO covers sexual harassment in employment field. An employer can be held vicariously liable for the unlawful sexual harassment acts of his employee (whether or not the acts were done with his knowledge or approval) unless the employer can show that he has taken reasonably practicable steps to prevent its employee from doing the unlawful acts.
From January 2017 to November 2020, the EOC received 506 sexual harassment complaints, representing 45% of all the complaints received by the EOC under the SDO.
By taking this case to court, the EOC hopes to raise public awareness on the law on sexual harassment, and to send a strong reminder to employers that they should take reasonably practicable steps to prevent sexual harassment from occurring in their workplace.
Equal Opportunities Commission
22 January 2021