WORKPLACE SEXUAL HARASSMENT IN SINGAPORE: THE LEGAL CHALLENGE

• Published date: 01 December 1999
• Author: JACK LEE TSEN-TA
• Date: 01 December 1999

This article examines the nature and prevalence of sexual harassment in the work environment, and compares civil and criminal law in Singapore to the approaches taken by various jurisdictions in dealing with the problem. It is submitted that legislation is needed to protect employees, as Singapore law currently does not present any clear and coherent means for victims to seek redress for workplace sexual harassment.

I. INTRODUCTION

MADDIE Mokhtar Ahmad joined the human resource department of a well-established communications company in Malaysia. It was a dream come true — she had always wanted to work there. She enjoyed her new work environment and made new friends. Then her world changed. A male colleague who was her superior began harassing her by making lewd remarks to her.1 Work became a nightmare for Maddie. She was afraid that her harasser’s statements would escalate into actions. Under great strain, she saw a doctor who prescribed pills to relieve her stress and fatigue and to help her sleep. She became addicted to them. Eventually, she complained about the harassment to her company’s human resource department and requested a transfer. However, the harasser learned about the complaint and recommended that she be discharged. The human resource manager and his deputy wanted to help her, but were afraid of repercussions. Finally, Maddie quit her job.2

Maddie’s harasser subjected her to only verbal abuse. Jeffrey Yung Siew Leong, a 28-year-old Singaporean salesman, went further. In February 1995, Yung began harassing a colleague by showing her pornographic magazines and asking her to touch his private parts. On 4 May, he asked her whether she had big breasts and molested her. She warned him not to carry on but he persisted, exposing himself to her and asking her to touch him. The next day, he molested her a second time. These acts took place in the showroom of the graphics company where they worked. The victim reported Yung to the police. He was jailed six months and given three strokes of the cane for outraging the victim’s modesty, and one month’s jail for exposing himself and making lewd suggestions.3

Work is important to most of us. Apart from enabling us to earn a living and to achieve prominence through career development, those of us who enjoy our work find that it builds self-esteem and brings a sense of fulfilment. Yet, for women like Maddie Mokhtar Ahmad, work is a nightmare because of the verbal and physical abuse they receive from those they work with. This article begins with an examination of the nature and prevalence of sexual harassment in the work environment. It goes on to look at the approaches taken by various jurisdictions in dealing with the problem, and finally considers the present legal position in Singapore and the way ahead.

A. What is Sexual Harassment?

Laws against sexual harassment can only be effective if they can accurately identify the behaviour to be proscribed.

According to Louise Fitzgerald and Alayne Omerod,4 sexual harassment (1) involves the sexualization of a professional relationship; (2) frequently occurs in the context of an organizational power differential (eg supervisor-employee), although it can occur in the absence of one (eg hostile work environment); (3) consists of unwanted and unwelcome behaviour, both verbal and non-verbal in nature; and (4) can be viewed along a continuum, from sexist remarks to non-verbal seductive gestures to sexual assault. Data collected by researchers in the fields of human-resource management and psychology gives us an idea of the range of harassing behaviour experienced by respondents. For instance, Frank Till5 classified the responses to an open-ended sexual harassment survey of college women and derived the following categories of sexual harassment, arranged in order of generally increasing severity:

1. i. Gender harassment — generalised sexist remarks and behaviour not designed to elicit sexual co-operation but rather to convey insulting, degrading or sexist attitudes about women;

2. ii. Seductive behaviour — unwanted, inappropriate and offensive sexual advances;

3. iii. Sexual bribery — the solicitation of sexual activity or other sex-linked behaviour by the promise of a reward, such as a salary increase or promotion;

1. iv. Sexual coercion — the solicitation of sexual activity by threat of punishment, for instance a failure to give a promotion or being fired; and

2. v. Sexual imposition or assault — this would include gross sexual imposition, assault and rape.

We can draw the following conclusions about sexual harassment:

1. i. Sexual harassment occurs when one person abuses power which he possesses to intimidate, coerce or humiliate someone else because of his or her sex. When it occurs in the workplace, it introduces an inappropriate sexual element into what should be a professional relationship.

2. ii. The hallmark of sexual harassment is that it is unwelcome. There can be no sexual harassment when two people voluntarily establish a personal, intimate relationship with each other.

3. ii. Sexual harassment can take many forms, both verbal and physical. Examples of verbal harassment include sexual innuendos, comments and remarks; suggestive, obscene or insulting sounds; implied or overt threats; and pressure for sex. Physical harassment includes leering or ogling; displaying offensive pictures; making obscene gestures; patting, pinching or brushing up against the victim’s body; assault; and coerced sexual intercourse. It can occur only once, or can be repeated.6

Sexual harassment has been legally defined in several jurisdictions which have enacted laws to address the problem. In the United States of America, there exist both federal and state statutes prohibiting sexual harassment. The federal statute is known as Title VII of the Civil Rights Act 1964, about which more will be said later. In 1980, the US Equal Employment Opportunity Commission (EEOC), established under that statute, issued guidelines defining workplace sexual harassment as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.7

The EEOC definition recognises two forms of sexual harassment in the workplace: quid pro quo harassment, and hostile environment harassment. The US Supreme Court has agreed with the Commission that both of these are violations of federal law. Quid pro quo harassment occurs when a manager or someone with authority to confer job benefits offers those benefits to an employee in exchange for sexual favours or threatens to take away certain benefits if the employee does not comply with his demands.8

Sexual harassment may occur even when there is no suggestion that a harasser is abusing his power over the victim. The victim may instead find that it is difficult for her as a woman to succeed in her working environment because of some behaviour, conduct, work rule, or a combination of these. This is the basis of hostile work environment harassment, which is why it has been suggested that a more accurate term would be discriminatory work environment harassment.9 In Henson v City of Dundee,10 the Court held that:

Sexual harassment which causes a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.

In the landmark case of Meritor Savings Bank v Vinson,11 a bank supervisor forced intercourse on the plaintiff, as well as exposed himself to her and other employees. Though the supervisor had not explicitly or implicitly made an offer of workplace benefits to or threatened to withdraw such benefits from the plaintiff, the US Supreme Court found that she had been sexually harassed. It agreed with the EEOC that certain conduct directed towards women, whether or not it is directly linked to the grant or denial of an economic benefit, could constitute a violation of Title VII if the conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an

intimidating, hostile, or offensive work environment.” The behaviour need not be overtly abusive. In Ellison v Brady,12 an employee of the Internal Revenue Service was held to have been sexually harassed by being subjected to continuing unwanted “romantic” overtures in the form of letters and pestering questions from a co-worker, even though there were no instances of threats or physical contact.

The law on hostile or discriminatory work environment harassment is a growing area in the United States, and its boundaries have yet to be clearly outlined. For instance, a claim of sexual harassment has been upheld where women lobby attendants were ordered by their employer to wear suggestive uniforms, which led to whistling and rude comments by customers. The court decided that the dress code had demeaned the women employees and their roles as professional workers, and thus created a hostile work environment. It has also been suggested that sexually suggestive e-mail or pornographic software on company computers may create a discriminatory work environment.13

Laws in other jurisdictions also recognise the two aspects of sexual harassment identified in...