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Tuesday, 5 February 2013

Sexual Harassment Awareness

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace ("the Code")
Regulation of members of the Bar within the legal profession and in dealings with the judiciary and courts
Click here to read.

Putting the spotlight on Sexual Harassment
An essential element of sexual harassment is that the conduct is unwelcome, as seen from the victim’s perspective. It is important to clearly let the harasser know that certain actions are unwelcome and unacceptable.

If you believe that you are the victim of sexual harassment (for example, crude/offensive behaviour, unwanted sexual attention, sexual coercion and sexual assault) in the workplace or in court, don’t ignore the problem. Take action here.

To generate greater awareness amongst members, the KL Bar Practitioners’ Affairs Committee will be issuing a series of monthly e-blasts on the Myths and Misconceptions of Sexual Harassment. This is the first in the series.

Myth: Most charges of sexual harassment are false.

Reality: People have nothing to gain from making false accusations and filing false charges. It is very difficult to file sexual harassment charges, and "the system" can be very hostile to accusers. Confronting the issue can be both physically and financially draining. Usually, victims are traumatized further by the entire process. Often, they experience retaliation and backlash in the aftermath.

Information courtesy of http://www.sexualharassmentsupport.org/

Sexual Harassment Awareness Series No. 2
MYTH: If you ignore sexually harassing behaviour, it will eventually stop.

FACT: In a recent survey, only 29% of the women who said they tried to ignore the behaviour said it “made things better”. Over 61% of the women said that telling the harasser to stop is the most effective method. In the work place especially, research shows that if sexual harassment is being ignored, 75% of the time, it continues or gets worse!

MYTH: Only women are sexually harassed, this does not happen to men; and all sexual harassment perpetrators are male.

FACT: While women continue to be the majority sexual harassment recipients, men do get harassed - by other men and by women. Currently, approximately 11% of EEOC claims involve men filling grievances against female supervisors. Also, increasing numbers of women are being sexually harassed by other women.

Information taken from pamphlet on “What is Sexual Harassment?” by the All Women’s Action Society (AWAM)

If you believe that you are a victim of sexual harassment in the workplace or in court, do not ignore the problem. Take action here

Sexual Harassment Awareness Series No. 3
Myth: Sexual harassment policies and legislation encourage a fear of sex, and demonizes behavior that is really normal between people.

Reality: Sexual harassing behavior may be common, but it is not "normal." Sexual harassment is not about sexual desire, at the core of the problem is abuse, particularly the abuse of power and authority. One would never say that racist acts are "normal," yet they are common, and are as harmful as sexual harassment. The issue is one of treating people with respect and dignity. That this does not always occur may be common, and may be human nature, but it is not "normal."

Myth: A harasser has to have sexual intentions towards their target for the behavior to count as sexual harassment.

Reality: Sexual harassment is discrimination and is a form of abuse, most commonly an abuse of power. The harasser's rationale does not change this fact.

 Information courtesy of http://www.sexualharassmentsupport.org/ Copyright © Control

Sexual Harassment Awareness Series No. 4
Myth: Some people ask to be sexually harassed. They do this with how they dress, or how they act. They send "signals".

Reality: Being subjected to sexual harassment is a painful, difficult, and frequently traumatic experience. Defenses such as "she wore provocative clothes" and "she enjoyed it" are neither acceptable nor accurate.

Myth: If a person really wanted to discourage, or stop, sexual harassment, they could.

Reality: Often, the harasser is in a position to punish the recipient by withholding a promotion, giving a bad evaluation, or giving a low grade. In this society, men are known to rationalise their actions by saying that a women's "no" is really a "yes".  And often the harassment continues despite the victims's attempt to say "No" or stop the behaviour.

Myth: The seriousness of sexual harassment is exaggerated; most "harassment" is really minor, and involves harmless flirtation.

Reality: REAL sexual harassment can be devastating. Studies indicate that most harassment has nothing to do with flirtation or sincere sexual or social interest on the part of the perpetrators. Sexual harassment is largely about control, domination, and/or punishment.  Research shows that victims most often leave school or jobs to avoid harassment. Many experience serious psychological and health-related problems.  They may even be forced to relocate to other cities. 

Information courtesy of http://www.sexualharassmentsupport.org/ Copyright © Control

If you believe that you are a victim of sexual harassment in the workplace or in court, do not ignore the problem. Take action here.

Sexual Harassment Awareness Series No. 5 
Myth: Any unwanted touch, sexual comments, or sexual attention is discriminatory and should immediately be considered sexual harassment.
Reality:  Sexual harassment is not about sexual desire, and what bothers one person won't necessarily bother another person.  In many cases, mild behavior is being labeled sexual harassment when it is really a matter of personal comfort, space, cultural difference, or even a simple miscommunication.  In these cases, the recipient(s) needs to communicate their feelings about the behavior so that the person or people engaging in the behavior know this is offensive or unwanted.  If the behavior continues even after there has been an attempt to resolve the conflict, this is an indication there could be a larger problem that involves discrimination or abuse.
Myth:  We live in modern times, and sexual harassment is becoming less of a problem.
Reality: Sexual harassment affects 40 to 60 percent of working women, with similar statistics for female students in colleges and universities. 10-20% of men have experienced sexual harassment in the workplace. Approximately 13,000 sexual harassment cases are brought to the Equal Employment Opportunity Commission (EEOC) each year.
Myth:  Sexual harassment is inevitable when people are working together.
Reality: While interactions between people may be inevitable, uninvited sexual overtures are not.
Information courtesy of http://www.sexualharassmentsupport.org/ Copyright © Control

Sexual Harassment Awareness Series No. 6: Stopping Sexual Harassment

As part of the efforts by the Practitioner's Affairs Committee to educate and empower its members, the PAC continues with its Sexual Harassment awareness series, focusing on what one can do when faced with sexual harassment. 

If you have been the victim of sexual harassment, do not stay silent. Take action and contact the Kuala Lumpur Bar Committee or submit your complaint here.

Sexual Harassment Awareness Series No. 6: Stopping Sexual Harassment

If possible, and if the harassment is not too severe or violent, directly confronting the harasser may be useful. Also, although having protested is not necessary for a claim, it would strongly strengthen a claim. 

Confronting harassment, the following steps are recommended:. 
  • Do the unexpected: Name the behaviour. Whatever he's/she's just done, say it, and be specific. For example, "Stop touching me XXX,". 
  • Hold the harasser accountable for his/her actions. Don't make excuses for him/her; don't pretend it didn't really happen. Take charge of the encounter and let people know what he/she did. Privacy protects harassers, but visibility undermines them. 
  • Make honest, direct statements. Speak the truth (no threats, no insults, no obscenities, no appeasing verbal fluff and padding). Be serious, straightforward, and blunt. 
  • Demand that the harassment stop. 
  • Make it clear that all women/men have the right to be free from sexual harassment. Objecting to harassment is a matter of principle. 
  • Stick to your own agenda. Don't respond to the harasser's excuses or diversionary tactics. 
  • His/her behaviour is the issue. Say what you have to say, and repeat it if he/she persists. 
  • Reinforce your statements with strong, self-respecting body language: eye contact, head up, shoulders back, a strong, serious stance. Don't smile. Timid, submissive body language will undermine your message.
  • Respond at the appropriate level. Use a combined verbal and physical response to physical harassment.
End the interaction on your own terms, with a strong closing statement: "You heard me. Stop harassing women/men." 

Documenting Harassment 
Documenting the harassment is important for use as evidence in a case or complaint. 
You should: 
  • Photograph or keep copies of any offensive material at the workplace. 
  • Keep a journal with detailed information on instances of sexual harassment. Note the dates, conversation, frequency of offensive encounters, etc. 
  • Tell other people, including personal friends and co-workers if possible. 
  • Obtain copies of your work records (including performance evaluations) and keep these copies at home
Source: http://www.feminist.org/911/harasswhatdo.html 

Sexual Harassment Awareness Series No. 7

7 Tips to Prevent Sexual Harassment at Work

By Aditi Mukherji on July 26, 2013 
Excerpts  from: http://blogs.findlaw.com/free_enterprise/2013/07/7-tips-to-prevent-sexual-harassment-at-work.html

Figuring out how to prevent sexual harassment in the workplace may be overwhelming and uncomfortable, but it certainly beats landing in middle of a lawsuit.

An example in the news: the San Diego mayor's sexual harassment scandal. As more alleged victims step forward, employers may want to take a more critical look at their own actions, their employees' actions, and their workplace policies.

Here are seven tips to help prevent sexual harassment at work:
  • Craft a strong anti-harassment policy. Your comprehensive employee anti-harassment policy should include sections about discrimination and harassment, the process for reporting harassment, and the disciplinary measures for harassment. Have workers and managers sign off on it after they've read it, and perhaps even post the policy where it can easily be seen.
  • Keep your office parties "PG"-rated. Cutting loose with your team is fine, but remind employees about prohibited sexual behavior. You may also want to implement a dress code, or prohibit risque or offensive entertainment.
  • Have supervisors attend anti-harassment workshops. The U.S. Supreme Court recently clarified that a "supervisor" for purposes of Title VII lawsuits is an employee who has the ability to hire or fire an employee. Though the decision narrows the definition and limits an employer's strict liability for harassment, you may want to play it safe: Make sure all higher-level employees - even those who don't have hiring or firing abilities -- receive anti-harassment training as well.
  • Address sexual harassment complaints immediately. It's important to take swift action to investigate and address harassment claims. Beyond avoiding or limiting your liability, taking prompt action sends a strong message to your employees that you take harassment claims very seriously.
  • Prevent retaliation. As demonstrated by the women in the San Diego mayor's case, victims of sexual harassment often hesitate to come forward because they fear retaliation. Retaliation could expose you to liability and embolden harassers. Remind employees that it's against the law to retaliate against an employee for filing a claim. Your ostensible commitment to the law could prove a powerful deterrant to potential harassers.
  • Don't laugh at or encourage inappropriate jokes. Some employees have, shall we say, colorful senses of humor. Hey, you might like it, too. But people may perceive crude humor as offensive. Remind employees that comments, jokes or gestures that aren't "safe for work" should be checked at the door.
  • Consult with an employment attorney. Consider consulting with an experienced employment law attorney to flesh out more options on how to deter sexual harassment in the office and avoid a Mayor Filner-esque 

Sexual Harassment Awareness Series No. 8

Practical Tips in Creating A Safe Environment at Work

The global change in wireless communication (text messages, e-mail, whatsapp, tweets) has changed and expanded the manner in which we communicate in carrying out our work responsibilities. 
However, this does not change the old workplace issue where employees are entitled to work in a safe environment of mutual respect, free of sexual harassment. 
The case of  McIntosh v. Metro Aluminum Products Ltd., [2011] B.C.H.R.T. No. 34 (Marion) is a British Columbia Human Rights Tribunal decision illustrating this. 
Lisa McIntosh filed a complaint against Metro Aluminum Products Ltd. (“Metro”) and Zbigniew Augustynowicz ("Mr. A"), alleging discrimination in employment based on sexual harassment. She said that she was subjected to ongoing sexual harassment through unwanted text messages from Mr. A which ultimately caused her to leave her position. Ms. McIntosh testified about a consensual sexual relationship with Mr. A and confirmed that the scope of her human rights complaint was limited to the allegation of sexual harassment based on repeated and unwelcome text messages containing sexually demeaning language as well as sexual comments and propositions after their sexual relationship ended. The Tribunal considered Ms. McIntosh’s admission of a prior consensual sexual relationship to have been relevant of whether, in all the circumstances, the text messages constituted sexual harassment. 
The Tribunal after considering the evidence, held in her favour: 
"[134] As consenting adults, Mr. A and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. A had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment. 
[135] After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. A knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. .........., and that her departure from Metro was due to the sexual harassment." 
Some practical tips gleaned from the Metro case: 
  1. Relationships of the kind Ms. McIntosh had with Mr. A are, as Tribunal Member Marion put it, “ill-advised”. Consider implementing a policy that requires disclosure of such relationships to the HR department. This will provide the employer with an opportunity to adjust the reporting relationship to avoid any conflict of interest or, at the very least, make clear to the employees in question that their relationship must not affect productivity, work quality or the work environment.
  2. Implement a comprehensive, enforceable anti-harassment and respectful workplace policy and, if such a policy is already in place, ensure that it is updated to capture all modes of communication, including wireless communication. Distribute the policy to all employees and make sure it is understood by them. Specify the disciplinary sanctions for breach of the policy and retaliation or reprisal. 
  3. Provide a safe mechanism for employees to report harassment. 
  4. Ensure that all harassment complaints are fairly and thoroughly investigated, regardless of who initiates the complaint and who is the subject of the complaint. 

If you have been the victim of sexual harassment, do not stay silent. Take action and contact the Kuala Lumpur Bar Committee or submit your complaint here.

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