In Malaysia, sexual harassment, as defined by the Employment Act 1955 , is “any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive, humiliating or a threat to their well-being”. The Act does not distinguish between male and female or employer and employee. As such, sexual harassment can be committed by a female against a male, or an employee against an employer.
The earliest recorded cases of sexual harassment at the workplace or misconduct of an employer towards an employee were seen as far back as 1939, at the time when Malaysia was still Malaya under the British colonial rule. In 1941, the Klang Indian Union organised a series of strike action and as part of their demands, condemned the molestation of female workers by Europeans and ‘Black Europeans’ and demanded an end to such behaviour. In 1950, 106 women and men rubber tappers from Panavan Karupiah Estate in Perak went on strike against sexual molestation.
Prevalence of sexual harassment
Although sexual harassment happens to both men and women, women are more often victims, especially in circumstances and locations where "patriarchy is deeply ingrained as a cultural value, and the men see nothing wrong in sexually harassing women". This is consistent with the statistics from the Royal Malaysian Police (PDRM) between 2013 and 2017, where out of a total of 1,218 reported sexual harassment cases, 79 percent involved victims who were women while 21 percent involved male victims.
In 1987, the Women's Section of the Malaysian Trades Union Congress (MTUC) conducted the first known survey on sexual harassment in the country. It reported that 11 to 90 per cent of the female respondents experienced sexual harassment in the workplace. However, this survey had two major flaws,Questionnaires were disseminated to low-ranking female staff i.e. clerks and typists working in quasi-governmental institutions. The survey neglected to account for the hierarchical protocol in such establishments where each questionnaire returned had to go through the head of the department or division, resulting in only 40 percent responses out of some 1,000 questionnaires. The other flaw was the failure to list down the components of sexual harassment. As such, respondents who were unsure of the different acts that constitute as sexual harassment could not place their experience into context and answer accordingly. and the findings were judged to be "inconclusive and not much of use". In 2001, International Labour Organization (ILO) cited two surveys of two government departments in Penang and Perlis in Malaysia, which found that 83 per cent and 88 per cent of women respondents had experienced some form of sexual harassment.
There is a lack of official statistics surrounding sexual harassment in Malaysia. As a response, the 2019 YouGov Omnibus survey was launched to find out how prevalent the issue was. Over a third or 36 per cent of Malaysian women have experienced sexual harassment, compared to one in six (17 per cent) men. The survey sampled 1,002 Malaysians, and of those who faced harassment only half (53 per cent) reported or told someone about what they had to endure. The most common form of sexual harassment experienced by Malaysian women is sexual assault (59%), followed by verbal comments of a sexual nature (48%), flashing (29%) and unwanted sexualised photography or videography (20%).
Sexual harassment at the workplace Sexual harassment at the workplace is a major problem in Malaysia. The prevalence of sexual harassment in Malaysia has been studied across different settings; within the civil service, various public and private workplaces such as hospitals, hotels, small and medium businesses, as well as various higher education institutions, both public and private universities. There are also sub-groups within the general Malaysian population who are more vulnerable to sexual harassment, such as adolescents, refugees, clerical workers, staff in the service sector (hotels), sports practitioners, female plantation workers, LGBT and migrant workers.
Online sexual harassment According to the 2017 survey conducted by PeopleACT, online sexual harassment was the second highest type of cyberharassment experienced by people. Out of 522 respondents, 89 stated that they have been sexually harassed online. Twice as many women (20.9 percent) experienced online sexual harassment compared to men (9.8 percent).
In 2020, with increased internet use as a side effect of the COVID-19 pandemic, All Women's Action Society Malaysia (AWAM) reported many incidents of online sexual harassment that has come to their attention prior and during the movement control order. Sexual harassment cases make up 18.5 per cent of calls that comes through AWAM helpline, and from that category, online sexual harassment accounts for 41.7 per cent of these cases. As more people resorted to online media and communications as a result of social distancing, many took advantage of online anonymity and expressed their discontent through sexist jokes, comments and in some cases, sexual harassment.
Development of legal provisions Raising awareness among the public (1985-1996) The activism behind the issue of sexual harassment in Malaysia appears to be a combination of individual and collaborative efforts between female trade unionists, NGOs as well as the larger coalition of women's groups in Malaysia. Since 1985, awareness-raising on sexual harassment was done by the Joint Action Group against Violence Against Women (JAG-VAW) through talks and seminars to the public, and this was extended to schools by AWAM and National Council of Women's Organization (NCWO). In 1988 the Women's Section of MTUC launched a specific campaign against sexual harassment in the workplace in response to a series of complaints from its members. In the 1990s, MTUC and AWAM joined forces in an awareness campaign that targeted all sections of society. There was significant need for public outreach as the topic of sexual harassment was almost taboo and victims were not keen to come forward. There also seemed to be a blind spot from Malaysian industry leaders. According to the Asian Executives Poll by the Far Eastern Economic Review in July 1996, in a poll involving 10 countries in the region, almost 60 per cent of Malaysian senior executives answered that sexual harassment was not a problem in the country.
A landmark case in 1996 changed the tone of public discourse, when the Industrial Court handed down the first award directly related to sexual harassment. Industrial Court Award No. 606 of 1996: Jennico Associates and Lilian de Costa received immense media publicity at the time. A director of operations of a hotel left her job and claimed constructive dismissal on the basis that the CEO, her immediate superior, had on two occasions kissed and tried to fondle her. She claimed that when she did not respond to his advances, he further harassed her by finding fault with her work. The Industrial Court found that; although the employee resigned, she was, in fact, forced to do so by the behaviour of her employer, although this decision was later overturned by the High Court.
The media coverage and campaigns by various women's groups highlighted that women at work required more protection than they were getting, which pushed the Ministry of Human Resources (MOHR) into action. A milestone was reached when MOHR announced its intention to prepare and issue a code to prevent and eradicate sexual harassment in the workplace. AWAM and the Women's section of MTUC were invited to be part of the Technical Committee responsible for drafting the Code.
Guidelines for employers (1999) In August 1999 MOHR launched the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace. The aim is to provide guidelines to employers on the establishment of in-house mechanisms at the company level to prevent and eradicate sexual harassment at work. According to the code, sexual harassment is defined as:
"Any unwanted conduct of sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment; that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on his/her employment; or that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or threat to his/her well-being, but has no direct link to his/her employment."
The code illustrates the following categories of behaviour and their possible examples:
+ Examples of behaviours that constitute sexual harassment Type of Harassment Examples of Undesirable Behaviour Verbal Offensive or suggestive remarks, comments, jokes, kidding, sounds, questioning Non-verbal / gestures Leering, ogling, suggestive overtones, licking lips, holding or eating food provocatively, hand signal, sign language denoting sexual activities, persistent flirting Visual Showing pornographic materials, drawing sex-based sketches, writing sex-based letters, sexual exposure Psychological Repeated unwanted social invitations, relentless proposals for dates or physical intimacy Physical Inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing, fondling and sexual assault
Lack of adoption of the code (2000 to present) While the Code has been the first concrete step towards recognising the seriousness of the issue, it is a voluntary code and is not legally binding. In early 2005, the Department of Labour estimated that out of 400,000 registered workplaces, only 624 have an in-house mechanism to tackle sexual harassment in the workplace. By 2010, less than 0.1% of registered and active companies had adopted the Code.
The other shortcoming was that the code did not give rise to a cause of action for the victim against the harasser. It is not uncommon to hear of survivors losing their jobs after lodging a sexual harassment complaint. If a person's employment is terminated as a result of their bona fide complaint of sexual harassment, the staff is only entitled to make a representation to the Industrial Department under section 20 of the Industrial Relation Act 1967 for unfair dismissal.
Pushing for a comprehensive sexual harassment legislation (2001) The push for a more comprehensive sexual harassment law was ignited by a specific case in 1999, which highlighted the lack of legal protection for victims of sexual harassment. Women's Crisis Centre (WCC) received complaints of sexual harassment from six women working in a resort hotel in Penang, where they were sexually harassed by the general manager. Two of them had already resigned because of his actions and the remaining four were afraid that they would be suspended after the New Year holidays. Their fears came true as one by one they were all terminated as the labour officer and women's groups witnessed that there was no legal provision to block the dismissals.
In 2000 JAG The group comprises the Women’s Crisis Centre, Penang, the Women’s Development Centre, the Women’s Aid Organization, All Women’s Action Society, Sisters in Islam, the Women’s Section of the Malaysian Trades Union Congress, Persatuan Sahabat Wanita, Selangor and the Women’s Candidacy Initiative. reconvened to petition for legislation on sexual harassment at the workplace to address the legal gap highlighted by the terminations. Within six weeks, WCC and other women's groups, as well as trade unions and worker's association gathered 12,800 signatures from individuals and the endorsement of 64 organisations comprising civil, professional, health, workers, social, political and other interest groups. MOHR was invited to accept the petitions on 30 June 2000.
Draft bill