THE NECESSITY FOR A SEXUAL HARASSMENT ACT IN MALAYSIA

Abstract

Sexual harassment is a major problem at the workplace. The options of recourse available to a person subjected to sexual harassment are: complaining to the employer, complain to the Labour Department, pursuing criminal proceedings under the Penal Code and commencing action under the law of tort. All of these options are not conducive. In 1999 the Ministry of Human Resources 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 in the workplace. While the Code has been the first concrete step towards recognising the seriousness of the issue, it is a voluntary code and the Ministry cannot compel companies to adopt it. A proposed Sexual Harassment Bill, which could give effect to the United Nations Convention on the Elimination of All Forms of Discrimination against Women that seeks to eliminate as far as possible discrimination involving sexual harassment in the workplace, was rejected by Parliament. In the absence of a specific statute, sexual harassment at the workplace is often dealt with as dismissal cases under the Industrial Relations Act 1967. This prevents our courts from dealing with sexual harassment issues such as the burden of proof, definition and other matters. This is important as many sexual harassment cases are unreported because of unawareness on the part of the victim as to whether the action actually constituted sexual harassment, and if so, where to complain and what to do. Apart from the legal implications of sexual harassment, sexual harassment could also affect the well-being of the victim.