What is sexual harassment?
Sexual harassment is any unwelcome or uninvited sexual behaviour which is generally regarded as offensive, humiliating or intimidating. This includes unwelcome sexual advances or unwelcome requests for sexual favours . The harasser may incur legal liabilities and may be liable to pay compensation to the victim. The “sexual harassment” referred to in the Sex Discrimination Ordinance “only deals with harrassment event took place in workplace and educational establishments, and should not be confused with the meaning of sexual harassment in general.
According to SDO, acts of sexual harassment can be done by any person to a man or a woman. The provisions concerning sexual harassment also apply to homosexual relations. For example, a man can be sued under the SDO if he sexually harassed another man, and likewise a woman who harassed another woman. Acts of sexual harassment may be carried out directly or indirectly in physical or verbal forms. Here are some examples:
- unwelcome physical contact (e.g. hugging, kissing or touching);
- staring or leering;
- brushing up against the body;
- intrusive questions about one's private life;
- sexually offensive gestures.
Sexual harassment also includes the creation of a sexually hostile or intimidating work environment by engaging in unwelcome or uninvited sexual behaviour, for example:
- sexually suggestive comments or jokes;
- displaying sexually explicit pictures or posters;
- insults or taunts based on sex;
- wolf whistling.
Some acts of sexual harassment may even amount to criminal offences in which the harasser may be liable to a fine or imprisonment, for example:
- making obscene phone calls;
- indecent exposure;
- sexual assault (indecent assault or rape).
The provisions of the SDO which govern sexual harassment do not apply to all environments. Broadly speaking, they only apply to the workplace/employment related environment and educational establishments. For the latter one, note that sexual harassment is not only prohibited between teachers and students, but it is also prohibited among students themselves. The third situation in which the provisions may apply is during the provision of goods, services and facilities. However, section 40 of the SDO only tells us that it is unlawful for the goods/services/facilities providers to sexually harass their customers/recipients. It does not tell us what would happen in a reverse situation. In view of the above, the Equal Opportunities Commission decides to improve the existing legislation concerning sexual harassment, and has submitted the relevant proposal to the Government.
What can you do if you are sexually harassed?
Ignoring sexual harassment does not make it go away, but may make it worse because the harasser may misinterpret no response as approval of the behaviour. The Equal Opportunities Commission has recommended some informal and formal strategies that can be used:
- Speak up at the time. Tell the harasser that his/her behaviour is unwelcome and has to stop;
- Keep a written record of the incidents, including dates, time, places, presence of any witnesses, nature of the harassment (what the harasser said and did) and your responses;
- Tell someone you trust;
- Identify an expert or counsellor who can provide emotional support and information about informal and formal institutional procedures;
- Write a letter/note to the harasser;
- Report it officially (e.g. to a senior staff in the company or the school principal);
- Complain to the Equal Opportunities Commission;
- Contact the police and/or file a lawsuit.
Whether or not sexual conduct is unwelcome and unlawful depends on two questions: i) whether the complainant welcomed or accepted the conduct at the relevant time (but not whether a "reasonable person" would have welcomed it); and ii) whether the circumstances were such that the harasser should have realized that his/her approaches were unwelcome.
Most sexual harassment court cases requires the victim to prove that "unwelcome sexual conduct" has occurred, therefore, it is very important that you expressly tell the harasser to stop right at the beginning of the incident. Otherwise, you may have great difficulty proving the existence of "unwelcome sexual conduct" if you subsequently lodge a complaint or institute legal proceedings.
If an incident involving sexual harassment happened in an office or another part of the workplace, to what extent may the employer be held responsible or liable?
With reference to section 46 of the SDO, employers may also be liable for acts of sexual harassment committed by their employees in the course of employment, regardless of whether or not the acts were done with the employers' knowledge or approval. However, it is a defence for the employers to show that they have taken reasonably practicable steps to prevent employees from committing such acts. The Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the Equal Opportunities Commission) contains some practicable steps or guidelines for employers' reference. The important points are highlighted below:
- employers should issue a policy statement to employees which expressly states that sexual harassment at work is unlawful and will not be permitted;
- the statement should also expressly state that employees have a right to complain if they are suffering from sexual harassment;
- a co-ordinator, preferably with special training, should be designated to establish and administer both formal and informal complaints procedures.
There may be both formal and informal ways of dealing with complaints of sexual harassment. The two approaches are both valid and can be included in a sexual harassment policy. The approach to take will usually depend on the wishes of the complainant. Employers need to set out clear procedures for both approaches and make the information available to all staff. This is particularly important in helping staff to understand the steps involved when making a complaint of sexual harassment.
Confidentiality would also strengthen any policy regarding handling sexual harassment. In short, any information relating to a complaint of sexual harassment must only be given out on a need-to-know basis. Employers need to ensure that managers understand this principle when dealing with such complaints. Adopting such a principle gives assurance to the complainant or potential complainant that management appreciates the sensitive nature of sexual harassment and that the details of complaint will not be disclosed to other colleagues.
How to complain
If you have been discriminated against, you should first complain to the person responsible for the discriminatory conduct. If the complaint is job-related, you can lodge a complaint with your organization's management or seek other forms of help from your staff association or labour union (if you belong to one). If the complaint is related to the provision of goods, services, facilities, or an educational establishment, you can lodge a complaint with the relevant service providers and request improvement.
If you fail to get any positive reply after complaining to the discriminator, you can lodge a complaint with the Equal Opportunities Commission (EOC). Alternatively, you may bring your case to the District Court.
Remember to make a record of what has happened as soon as possible while the incident is still fresh in your mind. The information will help you recall details at a later date should you wish to lodge a complaint, or take legal action.
If you have been treated badly because you acted as a witness or provided information for a friend or colleague who lodged a complaint, you can also lodge a complaint of "victimisation" (see section 9 of the SDO, section 7 of the DDO , section 6 of the FSDO or section 6 of the RDO ). You should immediately inform those who are dealing with your friend's or colleague's complaint such as their representing lawyer or the EOC.
Lodging a complaint with the Equal Opportunities Commission
You need to lodge your complaint in writing and provide the following information:
- details of the discriminatory acts and the dates involved;
- your personal information including your name and contact information. Other information required includes: sex or state of pregnancy (for sex discrimination), nature of your disability (for disability discrimination), or marital status and number of children (for family status discrimination), or race (for race discrimination);
- name of the discriminator/respondent (i.e. name of the person or company that discriminated against you) and their contact information;
- information supporting your claim of discrimination, harassment, vilification or victimisation;
- details of any detriment or emotional disturbance you have suffered because of the discriminatory acts;
- information pertaining to any witness(es), such as their contact information and what they witnessed.
You may lodge your complaint through the EOC's on-line complaint form, by fax,, by post, or in person. After a complaint is received, the EOC will first investigate the complaint and decide if the complaint has substantial grounds. If the complaint does not have substantial grounds, it will be discontinued. If there are substantial grounds, the EOC may proceed to conciliation or decide to start legal proceedings.
Time limit for lodging a complaint
If you would like to lodge a complaint with the EOC, you need to do it within 12 months of the incident. If you decide to take legal proceedings to the District Court, you need to do it within 24 months of the incident. You should try to seek legal advice before taking any legal action.
EOC handling a complaint
The EOC is required by law to investigate the complaint. Allegations by the complainant are sent to the respondent/discriminator for comment. Responses (if any) are then made available to the complainant. Witness statements are taken and pertinent materials are gathered to see if the case should be discontinued or proceed to conciliation. All information gathered during the investigation stage is kept confidential from third parties but may be used in court proceedings.
The EOC may decide not to conduct or to discontinue an investigation into a complaint if:
- more than 12 months have passed since the discriminatory act was done;
- the act complained of is not unlawful;
- the aggrieved person does not desire to continue with the investigation;
- the complaint cannot be pursued appropriately only as a representative complaint (i.e. the complaint should be personally lodged by the aggrieved person instead of being lodged through a representative);
- the complaint is frivolous, vexatious, misconceived or lacking in substance.
After receiving a complaint, the EOC must first carry out an investigation and decide whether to discontinue the case, or proceed to conciliation. When the investigation is completed, either side can also request that the case be settled through conciliation. However, conciliation is completely voluntary and either party can stop the process at any time.
The conciliator of the EOC assists both parties to examine the issues that led to the complaint, identify points of agreement and negotiate a settlement to the dispute. The conciliator does not represent either side but only acts as a facilitator.
Bringing the case to court
If the conciliation is not successful, the complainant can apply to the EOC for legal assistance to commence a civil lawsuit in the District Court. The granting of legal assistance by the EOC is not guaranteed. It may be granted if the EOC thinks that it is unreasonable, because of the complexity of the case or the complainant's position in relation to the respondent, to expect the complainant to deal with the case unaided.
Legal assistance may include the giving of legal advice, representation by the EOC's lawyers, legal representation by outside lawyers or any other form of assistance the EOC considers appropriate. A committee of the EOC considers all applications. If you wish to seek further information from the EOC, please click here.
If you fail to get legal assistance from the EOC, you may consider the Legal Aid Scheme run by the Legal Aid Department. Before obtaining legal aid, you need to go through a financial means test and a case merits test.
Any aggrieved person can go to the District Court directly and initiate a civil lawsuit under the law without going through the EOC. However, you are strongly recommended to consult a lawyer before taking legal action.
On the other hand, the EOC cannot entertain applications for legal assistance unless you have been through its complaints system and conciliation has proved to be unsuccessful. In such cases, the EOC may grant legal assistance if it thinks it is appropriate to do so.