Podcast S2E1 | Employment: Sexual Harassment in the Workplace

---

TRANSCRIPT

00:02 Welcome to a new series of The HIP Talks podcast: a collection of discussions on legal topics hosted by Hugill & Ip Solicitors. We provide high quality legal services with integrity, professionalism and respect for our clients and the community. Our solicitors have achieved outstanding results and recognitions in the areas of Dispute Resolution – Corporate & Commercial – Private Client, Probate and Trust – Family – Employment – Business Immigration and Data Privacy.

Margaret Wo  00:32
Hi, I’m Margaret and I am here today with Adam Hugill to discuss issues relating to sexual harassment, in particular sexual harassment in the workplace.

Margaret Wo  00:41
Hi, Adam.

Adam Hugill  00:41
Hi, Margaret.

Margaret Wo  00:42
So let’s start this off. What is sexual harassment under Hong Kong law and how is sexual harassment protected against in the workplace context?

Adam Hugill  00:50
Okay, the Hong Kong law is the Sex Discrimination Ordinance. It’s been in place since about 1995 and it’s modeled on the similar legislation in Australia. It essentially covers two types of harassment, one called quid pro quo or direct harassment, and the other is hostile environment harassment. Direct harassment usually involves a person in a position of power making unwelcome sexual advances or inappropriate requests, usually to a junior. The requests are usually coupled with offers of benefits, promotion, pay rises, or threats, ending someone’s career or moving projects or something like that, in order to coerce them.

Margaret Wo  01:27
And you’ve also mentioned there’s another type of harassment called hostile environment harassment or discrimination. Could you tell us more about that?

Adam Hugill  01:34
Yep, this involves employees engaging in conduct that creates a hostile or intimidating working environment. It often includes, well historically used to include an overtly macho office culture, inappropriate office banter of a sexual nature, perhaps displaying or sharing pornographic images or sending emails that are inappropriate client entertainment, in lap dancing or pole dancing venues.

Adam Hugill  02:00
All of that creates a hostile working environment. And while this conduct might seem to come from like the Mad Men era, and many organizations have been proactive to stamp it out, it continues to exist. And sometimes it exists in a way which can be even more subtle. Employees are often part of WhatsApp groups. And it’s very easy to share content that might be questionable, gifts and things like that, that people might not perceive as being sexual or inappropriate might be received by somebody who does think that. Also, employees often engage in WhatsApp and also workplace email outside of working hours when they might have let their guard down. And they might not perceive that their behavior is connected to work, even though it is likely that it would be deemed to be workplace conduct. It’s also important to remember that sexual harassment is often thought of as something that happens to women and perpetuated by men, and usually by more senior men to more junior females, but this doesn’t have to be the case. But it can’t be done by somebody of any same opposite sex.

Margaret Wo  03:03
So if the situation does arise where there is suspected or actual sexual harassment in the workplace, will the employer then be liable for the actions of its employees? And can the company find itself in court maybe facing claims of sexual harassment from the harassed employee?

Adam Hugill  03:19
Yes, it can. The Sex Discrimination Ordinance, which is the same as all of the other anti-discrimination ordinances contains provisions that the employer is vicariously liable for the acts of employees. Therefore, if an employee does commit an act of sexual harassment in order to avoid being vicariously liable, the employer has to demonstrate that it’s taken really quite robust steps to prevent such conduct. At a bare minimum, this involves having in place well drafted and communicated anti-harassment policies. But often this isn’t enough especially for senior management. And employers are also expected to ensure that policies are explained and indeed training takes place in respect to the policies.

Margaret Wo  04:00
So let’s double back a bit. We had discussed earlier what sexual harassment under Hong Kong law is. But how specifically does the law define what is sexual harassment, quote unquote? And how can it be proved?

Adam Hugill  04:13
Okay? The law itself is pretty strictly worded and requires the person to prove that there’s unwelcome sexual advances or unwelcome requests for sexual favors, or that the person engages in unwelcome conduct of a sexual nature.

Adam Hugill  04:28
The court has given some guidance as to what all of this means, in a case called Ray vs Tamara Ross back in 2001. And in particular, how the three aspects of sexual harassment might be proved. And so the first aspect is the evidential aspect. And it must be established at the event complained off has actually taken place. And then there’s the subjective aspect, which means that it must have been an unwelcome event. And then there’s the objective aspect, which means that it should have been anticipated as a matter of objective assessment that the person concerned would have been offended, humiliated or intimidated by the event. The important thing for sexual harassment is that unlike all other types of harassment, it has to be sexual in nature. And so the definition in the ordinance makes it very clear that it’s unwelcome sexual advances rather than just unwelcome advances, including unwelcome sexual favours or unwelcome conduct of a sexual nature.

Margaret Wo  05:27
So does the sexual discrimination ordinance then further elaborate on what conduct of a sexual nature might involve?

Adam Hugill  05:34
Surprisingly, since this is critical to the definition of sexual harassment, it’s not very well explained in the actual ordinance. But as I say, the law is based on Australian law and the Hong Kong courts are often guided by common law cases and in this case, especially cases from Australia. There’s historical Australian case which refers to sexual misconduct as this: “Conduct to a sexual nature is confined to words or conduct of a sexual nature that can be characterized as sexual or sexually related”. So it’s quite circular. “The term has broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships. It might refer to physical activities such as touching, pinching or passing in a sexual manner, or may refer to other words or conduct such as commenting on a part of a person’s body as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, and what we would say is certainly more obvious incidents of sexual harassment”. And so the definition is very, very broad. And again, even from the case law, it’s not all that specific. But thankfully, the Hong Kong Equal Opportunities Commission has issued a code of practice, called The Code of Practice on Employment Under the Sexual Discrimination Ordinance, and it contains a number of examples of sexual harassment in the workplace. And so the most obvious ones are of course referred to which is unwelcome sexual advances which includes leering and lewd gestures, touching, grabbing sort of deliberately brushing up against somebody unwelcome requests for sexual favors, which I think is sort of self explanatory. But it also includes unwelcome verbal and nonverbal conduct, including non physical conduct, which can include making stereotypical remarks or what we call scanning somebody’s body sort of looking them up and down. And then more generally, conduct which creates a hostile environment, such as we mentioned earlier, obscene jokes, displaying offensive pictures and that sort of thing.

Adam Hugill  07:35
The Equal Opportunities Commission also is very helpful in publishing a few booklets to educate the general public and provide some extra practical assistance. And one of the core booklets is called Preventing and Dealing with Sexual Harassment. And this gives some further sort of very tangible examples of sexual harassment. And so it says that repeated attempts to make a date being told no each time can amount to sexual harassment, comments with sexual innuendos or insulting or suggestive even sounds, relentless humor or jokes about sex or gender. And then obviously the more example activities of just sort of attempting to kiss somebody or touch them or even just sort of overly intrusive personal phone calls.

Margaret Wo  08:22
So many people will flirt in the workplace, I think it’s not unreasonable to say that the workplace is one of the main places where a lot of people find love, and they’re lifelong partners these days. So how does the law draw a line between what is legitimate flirting, and that could be reciprocated and what is actually unwanted conduct?

Adam Hugill  08:41
It can be a tricky question. And, again, it’s been considered in Hong Kong in various cases. And going back to the Tamara Ross case. The Court has said when it comes to unwelcome sexual advance or an unwelcome request, unwelcome conduct, the word unwelcome must relate to the parties concerned. And so what matters is that the advance or conduct was unwelcome to the person who was receiving the advance. If the advances are solicited or invited by the person at the material time, then it can’t be said that such advances were unwelcome.

Margaret Wo  09:11
So if for example, I say I fancy a work colleague and I wanted to get to know them better, would that be construed as sexual harassment?

Adam Hugill  09:20
Not initially, attempt to make a date with a colleague is not uncommon and it might arise from genuine physical attraction or a desire to build relationships, nothing particularly indecent. However, persistent attempts to make the date in the face of repeated objections, as you said earlier, have you constantly being told no, then that constitute sexual harassment. The way that the courts view this is it’s for each person to define his or her own level of acceptance. Unless the conduct is clearly sexual. The complainant must make it known that the rejection very obviously known to the person and so saying no, is a very simple way of making your objection known.

Margaret Wo  10:01
So you’d mentioned that the conduct has to be clearly sexual. So what would be conduct that is clearly sexual?

Adam Hugill  10:07
Okay. That’s the most obvious conduct of touching somebody deliberately brushing against them, especially in a sort of very deliberate way. And especially if you’re touching somebody sort of sensitive personal areas. And for what I said earlier about the recipient has to make it very clear that that conduct unwelcome for the case of something which is so obviously sexual, a woman doesn’t have to make it clear in advance that she doesn’t want to be touched in a sexual manner by a colleague.

Margaret Wo  10:36
Last year in the HR Magazine, you had published an article about the development of the #MeToo movement and how it spread from Hollywood in the USA to and just blew up and became a huge global phenomenon. You complain though, that although the Sex Discrimination Ordinance in Hong Kong has been in place for over 20 years, it has not been effective in stamping out sexual harassment. Do you think this is still the case?

Adam Hugill  11:01
I think it’s still the case that it’s certainly taken some time for the Sex Discrimination Ordinance to have the impact that it’s intended to have and stamp out discrimination and harassment in the workplace. However, I believe there is a genuine positive trend to people speaking up and be prepared to make their voices heard and report harassment.

Adam Hugill  11:21
The Equal Opportunities Commission’s official figures seem to bear this out. If we say that the #MeToo movement started in late 2017 and then we compare the Equal Opportunities Commission statistics from just before then with the most recent figures, we can see that in 2016-17, the total number of discrimination complaints of all discriminations were about 800. And in the latest figures for 2018-19, they’ve increased by about 500 to 1,300 and odd. Of those in 2016, 19% already 260 were related to sex discrimination, and that’s almost doubled to 420 complaints now. What has been consistent across the years is that all sex discrimination complaints, about half of those cases relate to sexual harassment. And so I think that they demonstrate that there’s a trend to people being more willing to speak up and to make reports, including taking the fairly big step of contacting Equal Opportunities Commission for assistance.

Margaret Wo  12:29
So what would you advise someone to do if they believe they are subject of sexual harassment in the workplace?

Adam Hugill  12:35
Most reasonable employers should have in place anti-discrimination policies, and they should set out some clear guidelines as to what somebody who is suffering from sexual harassment should do. Quite often the starting point is report it to the person who is harassing you and try and resolve it informally. And the reality is that people feel very uncomfortable doing that. And so there is usually instructions as to how you report up the line to that person’s manager or to HR. But in Hong Kong, it’s not uncommon for workplaces not to have dedicated Human Resources facilities or indeed for the top manager to be the person who’s perpetrating the sexual harassment. If that’s the case, then the Equal Opportunities Commission is available to investigate complaints of sexual harassment.

Adam Hugill  13:28
It’s very easy to make a complaint to Equal Opportunities come up, it’s very easy to actually make the complaint psychologically and emotionally. It’s a very big step to take. And they will investigate the complaint on your behalf and they have quite robust powers to investigate. Before that, often employees might feel that they’re being sexually harassed, but aren’t altogether, aren’t sure. And so it’s important that people keep records, maybe a diary or documents that relates to the harassment if you’re receiving a lot of work WhatsApp messages which get quite personal late at night, make sure you save all of these because a one off occurrence might just be just that it just a series of WhatsApp messages. But when looked at together as an entire picture, it can look very, very different. And it may well be the case that the sexual harassment is pretty subtle. And so keep records, keep diaries, and if in doubt, the Equal Opportunities Commission is available to provide you with assistance.

Margaret Wo  14:29
And just a more technical question, then, are there any time limits that people need to be aware of if they say do decide to pursue the harassment against?

Adam Hugill  14:37
Yeah, the Sex Discrimination Ordinance again, as with all discrimination ordinances has a two year limitation period to make a complaint for sexual harassment. Now, the way that this works is initially most people make complaints to the Equal Opportunities Commission and the Equal Opportunities Commission will ask that you make that complaint within one year of the act of harassment or if it’s a continuing act of harassment, at the end of that chain of harassment, usually it’s after somebody employment is finished.

Adam Hugill  15:11
The Equal Opportunities Commission will probably take three, six, possibly even up to say nine months twelve months to investigate a complaint. Whilst that’s complaint is being investigated, what happens is the limitation period has what we call “stop the clock”. And so that two-year limitation period stops when the Equal Opportunities Commission takes up the case and restarts again, when they’ve issued their conclusion or their final determination. And so the rule of thumb is that all complaints must be brought within two years. The Equal Opportunities Commission tends not to consider complaints to the brought later than one year. But if you have brought a complaint to the Opportunities Commission, then there’s the stop the clock provision which allows essentially a bit of breathing space and time for it to be investigated impartially.

Margaret Wo  16:00
Okay, so to wrap things up, sexual harassment is obviously a very serious issue, whether in the workplace context or otherwise. And what falls within the definition of sexual harassment is very broad. Hong Kong, however, is still a bit behind the rest of the developed world in terms of protection against sexual harassment, taking action for victims of sexual harassment, and reducing the stigma of this conversation. But hopefully, we’re moving in the right direction. So, if you think you or anyone you may know has been a victim of workplace sexual harassment, make sure you talk to someone about it and get the help that you need. And make sure that if you do want to seek some kind of legal redress that you do so within the time limits as Adam has just explained.

16:40 Make sure you tune into our other episodes of The HIP Talks podcast by checking the insights section at our website at www.hugillandip.com. You’re welcome to send your comments to our email address hello@hugillandip.com. If you found this episode to be insightful and helpful, please share it with friends, family and business associates along with other episodes of The HIP Talks podcast.

This podcast is for informational purposes only. Its contents do not constitute legal or professional advice.