4. What is sexual harassment? Under the Sex Discrimination Ordinance, is sexual harassment prohibited in all environments?
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.
According to section 2(5) and section 2(8) of 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.
(Note: The forbiddance of creating a sexually hostile or intimidating work environment under the current provisions of the SDO does not apply to the other environments except in the workplace/employment related environments.)
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).
In reply to the second part of the subject question, you should note that 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.