The Background
With International Women’s Day having come and gone this month, it is an appropriate time to take a step back and look at the current position of women in Hong Kong’s workplaces.
It is a comment on how far we have come as a society that sexual harassment is beginning to feel like an “old” problem in workplaces. The logic goes that in 2014, most people have enough common sense to know what is and isn’t appropriate behaviour towards colleagues.
Sexual harassment has been legislated against in Hong Kong for nearly 20 years – so there is some basis to the idea that employees and employers alike have had plenty of time to get used to the boundaries.
Since 1996, Hong Kong has had functioning sexual harassment laws in place, in the form of the Sex Discrimination Ordinance (SDO). Under that ordinance, acts that discriminate against people on the basis of gender, marital status and pregnancy are not permitted. Unwanted sexual advances or gestures are also prohibited.
However, the presence of an ordinance often isn’t enough to adequately curtail sexual harassment. Workplace culture plays a large part. Countless studies reflect a hesitation from the victims of workplace sexual harassment to report these incidents – oftentimes, this is a hesitation driven by a fear of being further isolated in the workplace.
It makes sense from a managerial point of view to seek to address that perception in every workplace. Aside from the ethical considerations, creating a definitive culture that derides sexual harassment is also an important mitigation of legal risk. While Hong Kong is yet to see the sort of “big dollar” sexual harassment cases seen in other jurisdictions, that’s not to say they won’t arrive in a Hong Kong courtroom soon enough.
The Threats
An employer may not be directly aware of an incidence of sexual harassment between two or more of its staff and still find itself legally liable. As has been shown in other jurisdictions, the courts do not consider unawareness the basis for absolution – in that employers have an obligation to provide a safe working environment where people can do their jobs free from discrimination and harassment.
Employers also need to be mindful that sources of sexual harassment need not come from inside the company for it to be a risk to an employee’s safety.
A survey conducted last month by the Hong Kong Equal Opportunities Commission and the Hong Kong Flight Attendants Alliance found that more than a quarter of responding flight attendants had been sexually harassed while on duty.
It is easy to see how service providers, like flight attendants, are the employees most vulnerable to sexual harassment, in that they are client- and customer-facing. While it is impossible to control the behaviour of an outside person – like a customer – employees still need to recognise the occupational health and safety risks that their staff members confront in the course of their duties and minimise those risks as much as possible.
The Effects of Technology
Employers should take another look at their sexual harassment policies in light of changing technology. For many employees, the workplace is no longer confined to the physical landscape of the office or factory floor. As our workload increasingly enters our smartphones, and as co-workers mingle on social networks more, the scope and opportunity for inappropriate behaviour escalates. This makes it harder to supervise the relationships between co-workers than ever before. Harassment can take place outside of working hours and still pose managerial problems and legal risk for employers.
Ultimately, regardless of technology and circumstance, the SDO targets the unwelcome nature of advances. If it was reasonable to assume sexual behaviour was unlikely to be welcome, a breach of the ordinance has likely occurred.
This should offer some comfort to employers in that it means despite the changing technological ground, sensible HR solutions do exist. Companies should ensure that they have – and regularly refresh – policies that cover sexual harassment in the workplace. This may include IT equipment, social media and e-mail policies.
Employers need to ensure their anti-sexual-harassment policy is backed up with regular, well-documented training about the policy. Measures should also be taken to communicate to staff, and particularly vulnerable groups of staff, that they have a right to speak up if they experience or witness harassment first-hand.
Dealing with sexual harassment is one of those rare managerial choices in which commercial, legal and ethical considerations perfectly align. As well as being the right thing to do, a proactive approach to stamping out sexual harassment is sound risk management and has been shown to increase morale and workplace productivity.
Kathleen Healy is a partner in Freshfield’s expanding Employment, Pensions and Benefits practice in Asia. Based in Hong Kong, she specialises in advising on Asia-Pacific employment and HR projects, and on the multijurisdictional employment aspects of internal investigations.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
