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Sexual Harassment & Gender Discrimination in the Workplace)

  1. Sexual Harassment and Gender Discrimination in the Workplace by: Ashgar Ali Ali Mohamed
  2. • Sexual harassment behaviour is contrary to-the norms and values of the society - good behaviour and morality is spelled out in the Malaysia’s national ideology or Rukunegara - KESOPANAN DAN KESUSILAAN (COURTESY AND MORALITY) • Universal Declaration of Human Rights 1948 recognises inter alia, a person's dignity, spiritual and material - the former would include an inappropriate conduct belittling a person’s dignity and honour, such as the act of sexual harassment. • The word ‘life’ in article 5(1) is not merely confined to physical existence alone but includes the quality of life such as the protection of one’s honour and dignity. • Every person within the shores of Malaysia has the right to live with common human dignity. See Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor Utra Badi K Perumal, [2000] 3 CLJ 224.
  3. • Sexual harassment is a violation of the women’s right to equality, life and liberty. • Article 11 of the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) clarifies that equality to employment can be seriously impaired when women are subjected to gender specific violence, such a sexual harassment at work • The Penal Code deals inter alia, with sexual crimes such as rape, sexual assault, physical molestation, indecent exposure, stalking and obscene communications, among others.
  4. Penal Code • Distribution of obscene literature (section 292), • Obscene public act and singing obscene songs to annoy another (section 294), • Assault or use of criminal force to a person with intent to outrage modesty (section 354), • Rape (section 376), • Unnatural offences against a person (section 377), carnal intercourse against order of nature (sections 377A, 377B, 377C, 377CA, 377D and 377E) and • Words or gestures intended to insult the modesty of a person (section 509). • An attempt to commit an offence or an act done in part execution of an offence is governed by section 511 of the Penal Code.
  5. S 509 Penal Code “Whoever intending to insult the modesty of any person, utters any word, makes any gestures or exhibits any object, intending that such words or sound shall be heard, or that such gestures or objects shall be seen by such person as intruding upon the privacy of such person shall be punished with imprisonment for a term which may extend to five years or with fine, or with both“ (S 509).
  6. Abu Hassan Bin Abd Jamal v Public Prosecutor [1994] MLJU 223. • Appellant was charged for exposing his genitals (the male organ). The incident happened in the canteen of a girl's school - a primary school. • The learned Magistrate took into account the plea entered by the appellant and proceeded to merely imposing a fine of MR500.00. The above sum, in the context of the prescribed sentence in section 509 of the Penal Code, was described as ‘a mere pin-prick’. • ‘It is fortunate that the Public Prosecutor did not appeal against inadequate sentence for had the Public Prosecutor done so, the appellant may find himself in a tight predicament’ (per Abdul Malik Ishak JC (now CAJ))
  7. What is harassment? • Behaviour which has the effect of humiliating, intimidating, or coercing someone through personal attack. • Behaviour that can cause the recipient to be embarrassed, uncomfortable, and cause distress. • Any behaviour that is unwelcome, unwanted, or unsolicited where the recipient regards it as offensive or undesirable. • (When a person communicates that the behaviour is unwelcome, it becomes illegal. Even if the conduct is not stated but implied, as long as it is unwelcome it is unlawful.)
  8. Sexual Harassment is • Unwelcome, unwanted, or offensive sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature when: (i) Submission to the conduct is made either explicitly or implicitly a term or condition of the individual’s employment or is used as a basis for any employment decision (granting leave requests, promotion, favourable performance appraisal, etc.); or (ii) The conduct is unwelcome, unwanted, or offensive and has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile or offensive working environment.
  9. Verbal Harassment e.g. offensive or suggestive remarks, comments, jokes, jesting, kidding, sound, questioning. Non- verbal/gestural harassment e.g. leering or ogling with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, persistent flirting. Visual Harassment e.g. showing pornographic materials, drawing sex- based sketches or writing sex-based letters, sexual exposure. Psychology Harassment e.g. repeated unwanted social invitations, relentless proposal for dates or physical intimacy. Physical Harassment e.g. inappropriate touching, patting, stroking, brushing up against the body, hugging, kissing, fondling, sexual assault.
  10. How common is Sexual Harassment? • Sexual harassment is common in the workplace • It is not limited to any particular profession, age, race, or gender
  11. • Survey by the Women’s Development Collective and All Women’s Action Society (AWAM) back in 2002, • among 1,483 respondents from six companies, which had adopted the Ministry of Human Resources (MOHR) Code of Practice, • there are approximately 35% of respondents in Malaysia had experienced one or more forms of sexual harassment.
  12. Examples of conducts constituting sexual harassment • Physically molesting staff by touching parts of their bodies • Peeping into the toilet • Making suggestive comments as a reward for arranging transfer, promotion with increase in salary etc. ('quid-pro-quo' ) • Suggestion of a vulgar and sexual nature.
  13. Some relationship in which sexual harassment could occur:
  14. Reported sexual harassment involves: - Male harassing female - Most common - Female harassing male, and - Male or female members of their own gender.
  15. Some relationship in which sexual harassment could occur
  16. Gender Harassment • Gender harassment involves generalized sexist comments and behaviour that convey insulting or degrading meanings about women. • Examples include insulting remarks, obscene jokes about sex or women in general.
  17. Seductive Behaviour • Seductive behaviour involves unwanted, inappropriate and offensive sexual advances. • Examples include repeated unsolicited sexual invitations, insistent requests tor drinks or dates, phone calls and other invitations.
  18. Sexual Bribery • Solicitation of sexual activity or other sex linked behaviour in return of a reward; • the proposition may be either overt or intended
  19. Sexual Coercion • Sexual coercion involves coercion of sexual activity or other sex-linked behaviour by threat of punishment. • Examples include negative performance evaluations, threat of termination, etc.
  20. Sexual Imposition • Sexual imposition means gross sexual imposition (such as forceful touching, feeling, grabbing) or direct sexual assault.
  21. Quid Pro Quo Sexual Harassment • Quid pro quo sexual harassment occurs when employment or decision or expectations are based on an employee’s willingness to grant or deny sexual favour • The sexual favour is made a condition in the hiring or in the employment or continued employment of said individual, or in granting said individual favourable compensation, terms and conditions, promotions, privileges • The refusal to grant the sexual favour results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunity or otherwise adversely affect the said employee • The person who commits quid pro quo sexual harassment is a person with power to influence the victim's employment like a supervisor, manager or a teacher.
  22. Examples of Quid Pro Quo (Prohibited Behaviours) • Supervisor demands sexual favours in exchange for a promotion or a rise • Supervisor disciplines or discharges an employee who ends a romantic relationship • Supervisor changes job performance expectations after subordinate refuses repeated requests for a date
  23. HOSTILE WORK ENVIRONMENT • A co-worker, manager or supervisor in the workplace makes unwelcome sexual advances which interferes with work performance or creates an intimidating, hostile or offensive work environment • The verbal or non-verbal behaviour in the workplace is unwelcomed or unwanted • The verbal or non-verbal behaviour is severe or pervasive enough to affect the person's work environment
  24. Example of behaviours that create a hostile environment: • Off-colour jokes or teasing • Comments about body parts or sex life • Suggestive or demeaning pictures, posters, calendars or cartoons • Leering, staring or gesturing • Touching - brushes, pats, hugs, pinches • Assault
  25. Hostile working environment claim: Requirements to be fulfilled • The conduct or behaviour was unwelcomed, • Nature of the conduct must be severe, and • The recipient regards such conduct or behaviour as hostile or offensive. • A hostile working environment amounts to unlawful sex discrimination even in absence of the loss of a tangible job benefit.
  26. No woman shall be subjected to sexual harassment at workplace • The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment • Implied or explicit promise of preferential treatment in her employment • Implied or explicit threat or detrimental treatment in her employment • Implied or explicit threat about her present or future employment status • Interference with her work or creating an intimidating or offensive or hostile work environment for her • Humiliating treatment likely to affect her health or safety.
  27. sexual harassment conduct / unwelcomed: Surrounding circumstances examined • Determined with reference to the surrounding circumstances such as the victim’s age, upbringing, culture, religious sensitivities and nature of the relationship between the parties, among other • Fear of reprisals and the nature of the power relationship between the parties are relevant factors to determine that the sexual conduct was unwelcome • NOTE: Sexual behaviour arising from a mutual relationship - No sexual harassment in the workplace. Important to determine whether or not the relationship between the parties were consensual
  28. Complainant say noting to harasser • Robichaud v Brennan (Ont. 1983), 4 C.H.R.R. D/1272, the review tribunal found that the submission by Mrs. Robichaud was “a result of the intimidation and fear that she had for her supervisor”. • Kotyk v Canadian Employment and Immigration Comm (Can, 1983), 4 C.H.R.R. D/1416, the human rights tribunal rejected the argument that sexual activities were consensual. It found that “Mr. Chuba’s advances to Ms. Kotyk were unsolicited and unwelcome and that she feared for her job”.
  29. Horman v Distribution Group Limited, [2001] FMCA 52. The claimant alleged sexual harassment in the form of inappropriate language and comments from fellow workers, pulling of her bra straps and touching of her buttock. The respondent however alleged that the claimant was a willing participant in the activities and that she also used crude language and engaged in similar behaviour. The court found that a reasonable person in the woman’s position would have been offended, humiliated or intimidated by the actions and remarks despite the fact that the woman had participated in some of them.
  30. Smith v Hehir and Financial Advisors Aust Pty Ltd, Sexual harassment complaint by the company manager in three incidents where he came up behind her while she was on the telephone and massaged her shoulders; put an arm around her when she was upset at work; and massaged her a second time while making sexual remarks and touching her in an unwanted manner. ‘Whether an action is compassionate or reprehensible will depend on the overall context in every case. The context here is that the action was not one between friends of long standing: it was an action by a middle-aged male employer to a young female employee who had only worked in the office for two weeks. It occurred not long after another incident when distress due to a phone call had been used as an excuse to massage the complainant. The action was more than just a touch, such as placing a comforting hand on the distressed person's arm or shoulder: it was more in the form of a cuddle. In my opinion, in this instance in the overall context, a reasonable person should have anticipated that there was the possibility that [the woman] would have found this action offensive, humiliating or intimidating. ‘ [
  31. Freescale Semiconductor Malaysia Sdn Bhd v Edwin Michael Jalleh & Anor [2013] MLJU 660 The punishment of dismissal for ‘slapping the buttocks’ according to Industrial court was too harsh in the circumstances. The High Court dismissed the appellant’s application for judicial review to quash the award of the Industrial Court. In particularly, the High Court stated: "The [Industrial] Court in determining whether the punishment of dismissal was too harsh is perfectly entitled to take into account, as it had done above, the circumstances in which the incident took place and the character evidence of the First Respondent." The Court of Appeal held that Industrial Court failed to take other equally relevant matters into consideration. ‘[T]he misconduct was committed by a superior, for the Respondent was the senior manufacturing supervisor, increases the magnitude of the misconduct, as it invites the implication he was taking advantage of his subordinate who might be afraid to complain. That the misconduct was committed in a place where a saw machine is used suggests a certain disregard for safety. That it was committed in full view of other employees does not make it any less objectionable. It merely excludes suspicions of worse things. Likewise, that fact that the victim was fully attired and protected by her work clothes. The misconduct was not of any inadvertent or accidental physical contact, but wilful. One must expect in a multicultural society such as in this country, that the workplace is also multicultural. In such multicultural work environment, industrial harmony, one of if not the main object(s) of industrial relations, is achieved not by one acting on the norms acceptable to himself, but he must be sensitive to what is acceptable by others.’
  32. Consensual immoral activities among staff outside the workplace • The immoral sexual acts may occur among employees or may involve an employee with another person who is not an employee. • It may warrant a dismissal of the employee for the reason that the misconduct may severely tarnish the reputation of the company or institution
  33. Permint Plywood Sdn Bhd, Kuala Terengganu v Kesatuan Pekerja- Pekerja Perkayuan Semenanjung Malaysia [1993] 1 ILR 253. • The claimant, Mohd Sapri, an assistant boiler man, was employed by the company for more than ten years • On 25 November 1990, after his shift, he invited Miss X, a female worker, to his house for the night as his wife was not with him that night. • Miss X went along and had an affair with him. • House was raided. • On 28 November 1990, the company issued a letter of charge to the claimant: “That you were found - (i) Cohabiting with Miss X, employee No. 2414 employed as Production Assistant, (ii) Your action as above is a serious breach of the company's rules and regulation”.
  34. • He pleaded guilty to the charge and the Board of Inquiry recommended that his salary be reduced by RM80 a month. • The union, representing the claimant, submitted that the claimant had not committed any act of misconduct at the workplace. They argued that the employer was not the general custodian of the morals of its workmen outside the workplace. • The company however, contended that the misconduct of the claimant was inconsistent with the expressed conditions of service. It had violated the company's rule which provides inter alia, that: ‘Seseorang tiada boleh berkelakuan yang akan mengakibatkan syarikat dapat nama buruk’ (An employee cannot behave in a manner that will result in disrepute to the company). • The company also contended that the claimant’s conduct had affected the image and reputation of the company
  35. Industrial Court held: • Whether sexual immorality by an employee in his private life is industrial misconduct depends on whether it will tarnish the employer's reputation or detract from his goodwill. In some positions, all sexual immorality is likely to hurt the employer, such as that of a priest. A married university professor who seduces one of his female students, or a school principal who seduces a native girl, as a result of which she bears an illegitimate child is guilty of misconduct. In the instant case, the claimant took another female worker form the company to his house and had an affair with her for the night. They were caught by a party during the night and during the inquiry, the claimant admitted his action. This, in our view, is misconduct, as the claimant's action has undoubtedly tarnished the company's reputation and is bound to affect the company adversely, especially in a small town like Bandar Al Muktafi Billah Shah.
  36. Employee’s hesitate to report sexual harassment • Fear of losing their job • Fear of retaliation • Fear of getting someone into trouble • Fear of disrupting the workplace • Fear of being accused of having no sense of humor • Fear of being embarrassed • Fear of feeling like “less of a man/woman” • Fear of not being believed. • Harassment are generally subtle and inconspicuous.
  37. • In 2012, matters on sexual Harassment in Workplace was inserted in the Employment Act. • Section 2 : Interpretation of Sexual Harassment was included • Part XVA added which covers: – Inquiry into complaints of sexual harassment – Findings of inquiry by employer – Complaints of Sexual harassment made to the Director General – Effects of the decisions of the Director General – Offence
  38. Code of Practice • Guidelines for Handling Sexual Harassment in the Workplace Among the Civil Servant No. 22 of 2005 (Public Services Department circular issued on September 10, 2005) • Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace
  39. Code of Practice on the Prevention and Eradication of Sexual Harassment in the Work Place • Provides guide for the employer to set up an in-house mechanism that defines, regulates, investigates and penalises incidents of sexual harassment within the workplace. • It is not legally binding and therefore it will only remain as a guideline for proper conduct of employer and employee in the workplace.
  40. Common law • The employer may be in breach of duty of care when he knows that acts are being done by his employees during their employment, and that these acts cause physical or mental harm to a particular fellow employee, but he does nothing to supervise or prevent such acts • Employees who had been sexually harassed are entitled to call in aid the doctrine of constructive dismissal and to seek their remedies in law: see Melewar Corporation Bhd v Abu Osman,[1994] 2 ILR 807, 840
  41. Evidence • The core issue involving sexual harassment is proving the allegation. The court would normally look for additional evidence of relevant circumstances which may render it probable that the allegations of the complainant is true and that it is reasonably safe to act upon it.
  42. False accusation • Mere inability to substantiate a complaint or provide adequate proof need not attract action against a complaint. • If the internal commit comes to a conclusion that it was a false and /or malicious accusation and /or the witness has given false evidence or produced any forged or misleading document, it may recommend the employer of the complainant and/or the witness to take action in accordance with the provisions of the service rules or where no such service rules exist, in such manner as may he prescribed.
  43. Gender Discrimination at the Workplace • “A differential and less favourable treatment of certain individuals" because of any characteristics such as sex, race and religion, "regardless of their ability to fulfil the requirements of the job: International Labour Organisation • An unfair treatment of two or more persons or subjects on grounds such as race, gender, disability, age, religious belief, etc.
  44. • Universal Declaration of Human Rights 1948 provides that all human beings are born free and equal in dignity and rights. • United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibits inter alia, discriminatory practices in the workplace in terms of promotion, job assignment, leave entitlement and termination, among others
  45. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) • CEDAW ratified by 188 states • Malaysia ratified in 1995 • State parties to take appropriate measure to eliminate discrimination against women in the field of employment, equal treatment at the workplace and the same employment opportunity as men • Dismissal on the grounds of maternity, pregnancy or status of marriage is prohibited.
  46. ILO’s Convention • (ILO) promotes inter alia, equality of opportunity and treatment • ILO has taken proactive steps in the elimination of employment discrimination at the workplace • Convention on Equal Remuneration No. 100 - remuneration between men and women • Discrimination (Employment and Occupation) Convention No. 111 - cover almost any aspect of employment that would cause discrimination on various grounds
  47. Sexual Harassment and Sex Discrimination • Sexual harassment is a form of sex discrimination against women • The argument is that since sexual harassment in the workplace is directed primarily at women, they are disproportionately subjected to detrimental treatment in the labour force and it is therefore a form of sex discrimination.
  48. Gender discrimination statute • UK Equality Act 2010 replacing Sex Discrimination Act 1975 • New Zealand’s Human Rights Act 1993, and • Australian Sex Discrimination Act 1984, • Title VII of the Civil Rights Act of 1964, • Anti Sexual Harassment of Women at Workplace Act 2013, among others. • Unlawful to discriminate an employee on the ground of the employee's sex: - in the terms or conditions of employment, - denying or limiting the employee's access to opportunities for promotion, - transfer or training, or to any other benefits associated with employment, - dismissing the employee or subjecting the employee to any other detriment
  49. Article 8 of the Federal Constitution • Basic concept of equality before the law and equal protection of the law • Article 8(1) generally prohibits discrimination against a person or class of persons unless there is a rational basis for such discrimination • Doctrine of classification - judiciously accepted as an integral part of the equal protection clause - Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165
  50. Article 8(2) - the prohibited grounds for discrimination • “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” • The word 'gender' in article 8(2) was inserted in 2001 in order to comply with Malaysia's obligation under the CEDAW
  51. • Article 8(2) begins with the exclusion clause: "Except as expressly authorised by this Constitution" • It demonstrates that certain kinds of discrimination may be allowed under the express provisions of the Constitution.
  52. Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713 (FC) • The appellant, a flight stewardess, had 11 years of service, was terminated from employment on grounds of pregnancy • The Federal Court held inter alia, that the constitutional law as a branch of public law only addresses the contravention of an individual's rights by a public authority. However, when the rights of a private individual are infringed by another private individual, constitutional law will take no recognisance of it
  53. Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors, [2012] 1 MLJ 832 (HC) • Issue: whether the action of the defendants in refusing to allow a pregnant woman to be employed as a Guru Sandaran Tidak Terlatih was gender discrimination and hence, a violation of article 8(2) of the Federal Constitution • Held inter alia, that discrimination on the basis of pregnancy is a form of gender discrimination. Applying arts 1 and 11 of CEDAW it was found that pregnancy in this case was a form of gender discrimination. • The principle of reasonable classification is only applicable to art 8(1) and does not apply to art 8(2) of the Federal Constitution
  54. Airasia Berhad v Rafizah Shima bt Mohamed Aris, [2014] MLJU 606. • The respondent, an employee of the appellant, was chosen to undergo an Engineering Training Program for a period of 4 years. • A material term in the agreement was that the respondent must not get pregnant during the duration of the training period. • The appellant terminated both the agreement and her employment when it found the respondent became pregnant during the final year of the course.
  55. • The High Court allowed the respondent’s application because the said agreement violating article 8 of the Federal Constitution, the United Nations Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) • Before the Court of Appeal against that said decision, the appellant relied on the Federal Court’s ratio in Beatrice a/p AT Fernandez case.
  56. • The Court of Appeal unanimously allowed the appeal and set aside the decision of the High Court. • Agreement was a lawful contract between private parties - the agreement did not discriminate against the rights of women. This is so because all the clauses in the agreement, especially clause 5.1(4), does not restrain marriage and/or prohibit pregnancy if the respondent had completed the said trainee in the manner stipulated in the said agreement.
  57. • Article 8 only deals with contravention of individual rights by a public authority - Relying on the Federal Court’s decision in Beatrice case • CEDAW has no force of law in Malaysia - CEDAW did not have the force of law in Malaysia because the same was not enacted into any local legislation
  58. Industrial Court’s approach • Dismissal tainted with unfair motives, having the element of discrimination, victimisation, capricious or mala fide actions that are incorporated under unfair labour practices would come within the scope of section 20(1) of the IRA.
  59. Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1997] 3 CLJ 827 CA • “…if the dismissal or termination is found to be a colourable exercise of the power to dismiss or as a result of discrimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and to set aside such dismissal."
  60. Shell Malaysia Trading Co Sdn Bhd v. National Union of Petroleum & Chemical Industry Workers [1986] 1 ILR 677 • The company must act in good faith without caprice or discrimination and without any motive of victimization or intimidation or resorting to unfair labour practice, and there must be no infraction of the accepted rules of natural justice...
  61. Kamaruddin Abd Rais v Tasek Corporation Berhad [2014] 2 LNS 0484 • If the dismissal comes through as a colourable exercise of managerial authority to dismiss, or is seen as a result of unfair labour practice or discrimination, or is carried out in blatant disregard to the actual state of affairs as may be evidentially proved; then the Industrial Court is open to interfere and set aside such a dismissal.
  62. Liability • Who is liable? • In quid pro quo situations - Harasser and employer is always liable • In Hostile environment situations - Harasser is always liable. • Employer is liable unless the employer proves they exercised reasonable care to prevent and remedy the harassing conduct
  63. A tort action against any unwelcome incidents of sexual harassment • Mas Anum Samirah, a former personal assistant, who was sexually harassed by the defendant, Othman Mohamed, her boss, was awarded a sum of RM25,000 as damages by the Sessions Court - See theStar online ‘Women wins Sexual Harassment case against ex-employer’ at 2F8%2F29%2Fcourts%2F11931990
  64. Vicarious liability • A claim for vicarious liability could also lie against an employer who had failed to attend to a complaint of detrimental treatment at the workplace, for example when a male colleague sexually harassed a female employee as a means of persuading her to leave her employment • Dee v Commissioner of Police, NSW Police (No 2) (2004) EOC 93-346; [2004] NSWADT 168, the complainant complained to first respondent, the employer, about repeated instances of unwanted body contact by second respondent, a fellow employee. As the first respondent failed to take all reasonable steps to prevent sexual harassment, the court held the first respondent vicariously liable for second respondent's conduct.
  65. Maslinda Ishak v Mohd Tahir Osman & Ors [2009] 6 CLJ 653 (CA). • Government together with the Director-General of Rela and the Federal Territories Islamic Religious Department (Jawi) was ordered to pay Maslinda Ishak, a former guest relations officer, damages, a sum of RM100,000, because they were found vicariously liable for the act of a Rela member, Mohamad Tahir Osman, who took a picture of her relieving herself in a lorry. • Maslinda and several colleagues were arrested by Jawi enforcement officers and the Rela members. After the arrest, they were led into a lorry. At about 12.50 a.m., when the vehicle was in Cheras, Maslinda had requested to go to the toilet but her request was denied. Instead, she was told to relieve herself inside the lorry. She did as direct and was shielded by a scarf held by her friends. It was then Mohamad Tahir pushed her friends away and took photographs of her relieving herself with his camera. The said incident had injured her emotionally.
  66. Islamic Approach • As Allah’s vicegerent on earth, man has been created to a position of honour (The Qur’an, 17: 70). • Islam has placed special importance in the protection of one’s dignity and moral values • Not only promiscuity is prohibited but all doors that lead to illegal sex such as khalwat (close proximity at a scheduled place), free mixing of the sexes, provocative dress, and obscenity among others, are also prohibited
  67. • Islamic law has provides a certain guidelines as to how male-female must conduct themselves with one another. • The wisdom is to prevent ill conduct between the opposite sexes and closed all doors that can lead to temptation, sexual harassment, rape and adultery. • Allah (s.w.t.) specifically commands the believing men and women alike to lower their gaze - Qur’an, 24: 31. • The Prophet (PBUH) also added that: “The eyes also commit zina, and their zina is the lustful look”
  68. • A Muslim woman must be properly covered in the presence of strangers and non-mahram relatives - Qur’an, 24: 31; 33: 59 • Many women in government organisations have chosen to wear the hijab although it is not made compulsory for them (See also Hajjah Halimatussaadiah Binti Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 CLJ 532 SC)
  69. Conclusion and Recommendation • Harassment and discrimination of any kind undermines the employment relationship • Employees must be protected from victimisation, harassment and discrimination. • An employee has the right to work in an environment free from unsolicited and unwelcome sexual overtures, intimidation, hostility, or other offences which might interfere with his/her work performance. • The employee's safety at the workplace should embrace protection against a hostile and intimidating work environment. • The workplace should not only be free from dangerous and hazardous substances, but also from all forms of sexual harassment and inappropriate sexual conduct.
  70. Preventive Steps • Company’s must have zero tolerance for harassment of any sort-verbal, physical, visual. • Recognise sexual harassment as a serious offence • Take immediate steps to stop inappropriate behaviour or conduct as it occurs or is reported. • Sexual harassment should be affirmatively discussed at workers' meetings, employer- employee meetings, etc. • Sexual harassment guidelines should be prominently displayed to create awareness of the rights of female employees
  71. Formulate an anti-sexual harassment policy • A clear statement of the employer's commitment to a workplace free of unlawful discrimination and harassment • Clear definition of sexual harassment and prohibition of such behaviour as an offence • A statement that anyone found guilty of harassment after investigation will be subject to disciplinary action. • Explicit protection of the confidentiality of the victim of harassment and of witnesses • A guarantee that neither complainant nor witnesses will be subjected to retaliation
  72. • Publish the policy and make copies available at the workplace. • Discuss the policy with all new recruits and existing employees. • Third party suppliers and clients should also be aware of the policy. • Conduct periodic training for all employees, with active involvement of the complaints committee.
  73. Thank you Freedom from sexual harassment is a condition of work that an employee is entitled to expect.