When ‘playful behaviour’ turns into harassment

PETALING JAYA: The fine line between flirting and sexual harassment is becoming thinner, so be careful with what you do, say, text or give.

With flirting defined as “playful behaviour to arouse sexual interest,” labour law experts caution that one can easily get into a fix for actions they may deem to be harmless or innocent.

The Industrial Court will accept it as sexual harassment if the flirting is severe or pervasive, they said.

Lawyer Datuk Thavalingam Thavarajah said it all depended on how someone perceived the other’s conduct towards him or her.

“At the end of the day, it is proof that matters because there are employees who have a personal vendetta or are unhappy as a result of a bad appraisal.

“If there is ulterior motive, they can also make a false claim against a superior,’’ he added.

 

Another industrial law expert Raymond Low said if the other party made it clear that it was “objectionable and unwanted conduct”, then it would be a clear-cut case of sexual harassment.

Thavalingam said bosses should include flirting as a prohibited act in line with the Human Resource Ministry’s Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.

Sexual harassment can be done through a text message, Facebook and other social media, or giving pornographic material, says Thavalingam.

“It must be directed at someone and the person must feel offended. It cannot be a general statement without a specific addressee,” he said.

He added that there was a manager who was sacked for sending an inappropriate SMS to a married female worker and lending her a book with sexual connotations.

“The High Court ruled this as inappropriate and upheld his dismissal,” he added.

Thavalingam said if there was evidence of unwarranted communication or advances, employers need not wait for a formal complaint to be lodged.

“If it comes to the employer’s attention, they can begin disciplinary action,” he said.

Lawyer Janice Leo said sexual comments passed off as flirting should be taken seriously.

“Some people may take it as a joke or compliment but another can be quite offended particularly when the feelings are not reciprocated,’’ she said, adding that flirting can also be seen as a cheeky way of expressing one’s feelings to another.

Women’s Aid Organisation executive director Sumitra Visvanathan said everyone, whatever their gender, should respect each other and not make others uncomfortable by their conduct.

She said staff disturbed by a colleague’s flirting should “communicate this clearly to them”.

Sales executive Amanda Lit said the interpretation by each person on flirting would be subjective.

“Some people are not open-minded. They will have misconceptions on the conduct of another person,” said Lit.

However, she said that if someone had used abusive words or profanity then it could be considered sexual harassment.

“If a man just asks me for a cup of coffee it is fine. If he goes overboard and starts to make sexual comments and his body language shows it, it is no more flirting and it could be sexual harassment,” said Lit.

Former Industrial court chairman Roslan Abu Bakar said the court would consider the perceptions of the accuser and alleged harasser in deciding a sexual harassment claim.

“Normally, the alleged male harasser will claim that it is normal in his culture with regards to certain acts but it will be viewed differently by the victims,” said Roslan, who is currently the Federal Court’s chief registrar.