Speech by Prof. Ashgar Ali Ali Mohamed from IIUM, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015

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.)

9. 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.

12. 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.

13. How common is Sexual Harassment?
• Sexual harassment is common
in the workplace
• It is not limited to any
particular profession, age,
race, or gender

15. • 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.

16. 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.

17. Some relationship in which sexual
harassment could occur:

18. Reported sexual harassment involves:
- Male harassing female - Most
common
- Female harassing male, and
- Male or female members of their
own gender.

19. Some relationship in which sexual
harassment could occur

21. 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.

22. 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.

23. Sexual Bribery
• Solicitation of sexual activity or
other sex linked behaviour in
return of a reward;
• the proposition may be either
overt or intended

24. 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.

25. Sexual Imposition
• Sexual imposition means gross
sexual imposition (such as forceful
touching, feeling, grabbing) or
direct sexual assault.

26. 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.

27. 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

28. 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

29. 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

30. 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.

31. 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.

32. 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

33. 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”.

34. 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.

35. 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. ‘
[

36. 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.’

37. 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

38. 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”.

39. • 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

40. 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.

41. 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.

42. • 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

43. 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

44. 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.

45. 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

46. 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.

47. 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.

48. 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.

49. • 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

50. 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.

51. 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

52. 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.

53. 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

54. 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

55. 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

56. • 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.

57. 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

58. 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

59. 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.

60. • 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.

61. • 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.

62. • 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

63. 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.

64. 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."

65. 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...

66. 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.

67. 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

68. 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
http://www.thestar.com.my/story/?file=%2F2012%
2F8%2F29%2Fcourts%2F11931990

69. 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.

70. 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.

71. 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

72. • 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”

73. • 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)

74. 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.

75. 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

76. 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

77. • 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.

78. Thank you
Freedom from sexual
harassment is a condition
of work that an employee
is entitled to expect.