‘Too many loopholes, limitations in current law’

PETALING JAYA: Existing legislation and policies on sexual harassment need to be looked into, says lawyer Ng Yih Miin.

He said the responsibility for employers to investigate sexual harassment complaints was not emphasised enough in the legislation.

Under the Employment Act, he said employers who fail to investigate are only fined a maximum RM10,000, so this might not provide a strong enough deterrent.

Amendments made in 2012 to the Act also exempted employers from investigating sexual harassment cases if they are of the opinion that the complaint was “frivolous, vexatious or is not made in good faith”, he said.

“There should be a mandatory inquiry for any sexual harassment complaint lodged by employees,” he said.

He added there was no legislation dealing with sexual harassment per se in the Penal Code, though Section 377D and 509 may be applicable.

Lawyer Datuk David Morais said while it was good that the tort (civil wrong) of sexual harassment was introduced, there were limitations.

Currently, the ingredients of sexual harassment include a “persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated and does cause that person alarm, fear or distress”.

Morais said one limitation is that the harassment was defined as being a repeated action, when a single incident should be enough.

Another limitation has to do with determining how a victim has suffered injury, or “alarm, fear or distress”, from the sexual harassment, he said.

“The threshold for what is considered an injury in sexual harassment cases should be lowered.

“An injury to even the dignity of the victim should be the threshold.

“Costs incurred in prosecuting the action should also be fully compensated as they can be prohibitive,” he said.

Human rights lawyer Honey Tan said current legislation goes a long way to deal with the issue but the problem lies in the implementation part.

One problem may be that victims are not aware of existing legislation which tackles the issue, she said.

“The government and employers should go all out to highlight the policies and laws on sexual harassment.

“There are anti-smoking and anti-corruption campaigns, (but) where is the anti-sexual harassment campaign?

“Women should know that such a tort (on sexual harassment) exists, and take the matter to court,” she said.