09/28/2022 | News release | Distributed by Public on 09/28/2022 01:54
This three-part series will focus on sexual harassment in the corporate setting and discuss the importance of corporate policies and measures against sexual harassment from a governance perspective. Part one of this series covers the legal framework and highlights lessons learned from recent cases. Parts two and three will discuss how to conduct effective corporate investigations and provide guidance on managing risks of workplace sexual harassment.
Following the evolution of #MeToo into a global movement, there has been a surge in accusations of sexual harassment in the workplace in recent years.
In Asia-Pacific too, #MeToo has gained greater prominence, with more complaints being made, a small number of high-profile public cases and non-governmental organizations emerging to focus on this issue and encourage better governance and protection of, and rights for, victims. Some jurisdictions already have significant law and regulation on harassment. Some governments, though, have recently been exploring whether it is appropriate to develop anti-harassment law further, not just limiting their review to sexual harassment but encompassing wider forms of harassment and discrimination.
In contrast, perhaps most notably to the U.S. in particular, to date, whether complaints of sexual harassment are resolved formally or informally, they tend to be dealt with privately and not in the public domain. A private resolution of a sexual harassment claim may be in the interests of both the complainant and the employer. However, these privately resolved cases do not trigger regulatory or judicial guidance to corporations regarding the expectations and liability standards on employers.
Part one of this series will provide an overview of what conduct potentially constitutes sexual harassment, the legal and regulatory landscape in Asia-Pacific, and the risks and potential consequences faced by employers and individuals where sexual harassment takes place in the workplace.
First, we explain the relevant terminology, recognizing that there may be differences in scope in law and regulations between jurisdictions:
There are two main types of workplace sexual harassment:
Sexual harassment can occur between individuals of the opposite sex or the same sex, as well as between employees and non-employees (such as contractors, vendors, unpaid interns, applicants for employment, clients, customers, visitors, and any third party in the workplace).
Despite its name, workplace sexual harassment is not limited to the physical workplace itself, but can occur whenever and wherever employees are fulfilling their work responsibilities. Examples include (but are not limited to):
With the COVID-19 pandemic transforming the world of work and blurring the lines between work and home, new forms of remote sexual harassment have arisen. This may include improper comments on an employee's appearance on camera; dressing inappropriately when participating in virtual conferences; the use of unprofessional virtual backgrounds and inappropriate emojis; recording video conversations without permission and posting the recordings on social media.
In most jurisdictions, sexual harassment could constitute a criminal offense. The #MeToo movement has also prompted legislative and enforcement responses from governments across the world. This section provides a high-level summary of the anti-harassment legal framework in Hong Kong, the People's Republic of China and Singapore.
Discrimination and harassment in the workplace are governed in Hong Kong by various statutes, including the Family Status Discrimination Ordinance (Cap. 527), Race Discrimination Ordinance (Cap. 602), and Disability Discrimination Ordinance (Cap. 487).
Sexual harassment is prohibited by the Sex Discrimination Ordinance (Cap. 480) which applies to employers in Hong Kong and "workplace participants," including interns and volunteers. The legislation covers both same-sex and opposite-sex harassment and addresses both direct harassment and indirect harassment (whereby a secondary victim who witnesses the unwelcome act is exposed to a hostile or intimidating environment). Under this Ordinance, employers can be held vicariously liable for the acts of their employees to the extent they are conducted "in the course of employment", which includes off-hours work-related social events, unless the employer has taken reasonably practicable steps to prevent employees from engaging in acts prohibited by the Ordinance.
The Hong Kong Equal Opportunities Commission's "Code of Practice on Employment" provides practical guidance to employers for eliminating harassment and discrimination.
In addition to the existing prohibition of sexual harassment against women in the Law on Protection of Rights and Interests of Women, as well as anti-discrimination provisions in the Labor Law and the Employment Promotion Law, Article 1010 of the new PRC Civil Code (which took effect on 1 January 2021) sets out the latest anti-harassment provisions. Points to note about Article 1010 include:
Earlier this year, the National People's Congress deliberated on proposals to amend the Law on the Protection of Women's Rights and Interests. The draft amendments seek to prohibit harassment against women involving words with sexual connotations or innuendo, inappropriate and unnecessary physical behavior, displays or dissemination of images, text, information, audio or video with obvious sexual significance, and acts implying benefits from initiating a sexual relationship. The proposals also seek to improve protection against discrimination on the basis of marriage status, pregnancy, maternity leave, and nursing.
As with many jurisdictions, Singapore's Constitution prohibits discrimination on the grounds of religion, race, descent or place of birth. The Constitution, however, does not specifically guarantee equality or non-discrimination based on other grounds, such as sex, family or disability status. Singapore's criminal law penalizes rape, sexual assault, molestation, voyeurism, and indecent exposure.
The Protection from Harassment Act, which came into force in 2014, criminalizes harassment, stalking and other anti-social behavior. While the statute does not specifically define sexual harassment, it protects against the use of any threatening, abusive or insulting words or behavior, the making of similar communications, and "doxxing". Doxxing is modern offence created in 2020 in Singapore to address the increasing trend of victims being harassed through publication of personally identifiable information, with the intent of harassing, threatening, or facilitating violence against the person.
Under the legislation, perpetrators could be subject to both criminal sanctions and civil remedies. While an employer cannot be held vicariously liable under the statute, an employer's failure to protect employees from sexual harassment or handle similar complaints may amount to a breach of express or implied contractual duties and internal policies, such as duties of mutual trust and confidence and to provide safe working conditions and protections.
Sexual harassment presents an ongoing danger for employees, as well as employers. For employers, allegations of sexual harassment could:
The following are several recent notable cases of workplace sexual harassment, highlighting the consequences and impact of sexual harassment on corporations and individual employees. These are global cases, not all occurring in Asia-Pacific, but the principles involved appear universal:
As demonstrated by the cases highlighted above, the effects of workplace sexual harassment and associated litigation and publicity can present a clear danger to businesses and employee-wellbeing. The power of social media poses a heightened risk of severe reputational damage for employers, which might in practice prove more debilitating than any legal liability.
In order to ensure that they are not fostering a workplace where sexual harassment can occur, companies should proactively develop robust and specific policies and procedures, covering (1) provisions on unacceptable behavior at work, (2) reporting and whistleblowing, (3) investigating and handling complaints and claims, (4) ensuring business partners and advisers, including legal advisers, commit to supporting the policies, and (5) appropriate disciplinary repercussions for breaches.
It is necessary, but not sufficient, to have robust, specific policies and procedures. Companies should provide comprehensive sexual harassment prevention training and develop an environment that does not tolerate sexual harassment.
It is critical that boards demonstrate strong leadership in this area, ensuring both that senior management drive down to the tone from the top and that they (the boards) respond appropriately when sensitive matters, including those related to sexual misconduct, arise.