part a definition and scope of sexual harassment

1

How to Manage Sexual Harassment Complaints

and Conduct Investigation

Dr. Ferrick ChuExecutive Director (Operations)

Equal Opportunities Commission26 May 2021

© Equal Opportunities Commission 2021 All Rights Reserved

Outline

A. Definition and scope of sexual harassment

B. Options for resolving sexual harassment complaints

C. Issues of investigations Process Principles Assessment Documentation

D. Skills of writing investigation report

2


Part ADefinition and Scope of

Sexual Harassment

3© Equal Opportunities Commission 2021 All Rights Reserved

Anti-Discrimination Ordinances

Sex Discrimination Ordinance (SDO), 1996

Disability Discrimination Ordinance, 1996

Family Status Discrimination Ordinance, 1997

Race Discrimination Ordinance, 2009

Sexual harassment is unlawful under the SDO

4

© Equal Opportunities Commission 2021 All Rights Reserved5

What is Sexual Harassment ?

1. Person to Person

2. Sexually Hostile or Intimidating Environment


1. Person-to-Person Sexual Harassment

X sexually harasses Y if :

X makes an unwelcome sexual advance, or an unwelcome request for sexual favors to Y; or

X engages in other unwelcome conduct of a sexual nature in relation to Y

6

A reasonable person, having regard to all the circumstances, would have anticipated that Y would be offended, humiliated or intimidated.

Subjective Test

Objective Test

2


A v Chan (DCEO 7/2009)

• A and Chan – Staff of a HK Government Dept

• Chan leered at A and commented her body, made lewd remarks and facial expressions to A, asked A to kiss him and etc.

• Judgment:

HK$60,000 in compensation for injury to feelings (HK$50,000) and punitive damages (HK$10,000)

Written apology to A

Pay the court costs for A7


Yuen v Tse (DCEO 1/1998)

Tse placed a camcorder secretly at Yuen’s room of student hostel

Tse collected recorded images of Yuen’s sleeping, undressing and changing her clothes

The Court ruled that it was an unlawful sexual harassment

Tse was ordered to

compensate damages to Yuen at $80,000

tender his apology in writing

8

© Equal Opportunities Commission 2021 All Rights Reserved 9

• Jan 2019

• Territory-wide study on SH of university students in Hong Kong

• 14,422 questionnaires received


© Equal Opportunities Commission 2021 All Rights Reserved 11 © Equal Opportunities Commission 2021 All Rights Reserved

Conduct of a Sexual Nature

Physical

Visual

Verbal

Intentional / unintentional

Single / repeated incidents

12

3


Some Examples (1)

13

• Comments on somebody’s figure

• Questions of a sexual nature about a person’s private life

• Requests for kiss, hug or sex

• Sexual comments or jokes (including those via whatsapp/ line/ email)

• Staring or leering at a person / parts of a person’s body


Some Examples (2)

14

• Displays of sexual materials such as articles, photos or cartoons (including materials transmitted through electronic methods)

• Unwelcome physical contact such as massaging a person

• Touching or fiddling with a person’s clothing

• Standing or sitting too close


Unsolicited/uninvited

Unreciprocated

Undesirable

Unwelcome

15


Reasonable Person Test

• Objective standard

• Reasonable person’s anticipation of reaction in same or similar circumstances

• Stereotypical notions should not be considered

16


Having Regard to “All Circumstances”

All relevant circumstances have to be taken into consideration:

1. Personal characteristics – gender, age, race and etc.

2. Relationship between the complainant and the respondent

3. Context of the incident, events as a whole


2. Hostile or Intimidating Environment

A person, alone or together with other persons

engages in conduct of a sexual nature

which creates a hostile or intimidating environment for other(s).

18

4


Examples (1)

Open discussion of sexual jokes

Use of sexually explicit photos or pictures as computer wallpaper or screensaver

Browse of sexually offensive websites

Display of sexually offensive posters and calendars


Examples (2)

Anyone uses sexually suggestive cartoons in teaching a subject not related to sex

A group of students hang out in student canteen and comment female students’ body figures

A group of students hijack classroom discussion and turn it to sexual topics. Some students feel offended

Students leaders ask new students to play games with sexual overtones in the university orientation camp

20


Applicable Fields

The fields covered relate to our public life. Examples:

21

• Employment

• Provision of goods, facilities and services

• Education, etc.


Relationships Governed

Employment

Employer

Employees

Job Applicants

EmployeesNo sexual harassment in common workplace between “workplace participants” with no employment relationship, e.g. interns and volunteers.


23


Provision of GFS

Service Users

Service Providers



Education

StudentsTeachers / Staff

StudentsStudents

5


Individual Legal Consequence

• Individuals are personally liable for their own unlawful discrimination acts under the law

• It is unlawful to:

instruct someone to sexually harass another person

pressure someone to sexually harass another person

knowingly aid someone to sexually harass another person

25


Employer Legal Consequence –Vicarious Liability

The employer is liable for their employees’ unlawful sexual harassment in the course of their employment whether with or without employer’s knowledge or approval

An employer is not liable only if it has taken reasonably practicable steps to prevent its employees from performing unlawful sexual harassment in the course of their employment.

26


Reasonably Practicable Steps

These include but are not limited to:

Developing and implementing a policy on sexual harassment

Developing a complaint resolution procedure Appointing a person in the organization to

take responsibility for sexual harassment issues

Awareness training for employees about what is unacceptable and unlawful behavior in the workplace

27


The University of MacauGuidelines for Handling Sexual

Harassment and Sexual Bullying Cases

Effective Date: Feb 2019

Content:

General Principles

Definition

Applicability

…

Processing of complaints

28


Part BOptions for Resolving

Sexual Harassment Complaints


Why People Don’t Complain

Not aware of policy and procedures Don’t know who to complain to

Lack of education /guidelines on acceptable behaviours in workplace

Not realise some behaviour may even be unlawful

No trust /confidence in complaint handling process Not believe complaining will result in desired change Complaint process is perceived as too stressful to

embark upon

30

6


Why People Don’t Complain

Don’t wish to be seen as trouble maker Hope the situation will right itself

Fear of victimisation, reprisals, repercussions Fear of not being believed Fear others will say they "asked for it”

Self-blaming / internalisation


Complaint Procedures: Necessary?

Implement organizational policies

Promote fairness and consistency in treatment of individuals

Discharge of vicarious liability

Reveal problems in employment, services, etc.

Important component in preventing and minimising impact of inappropriate behaviour

Help creating and ensuring a safe, efficient and respectful workplace

32


Options in Complaint Handling

1. Self-management approach

2. Informal complaint resolutions

How managers can assist Mediating disputes Proactive

– Preventive measures– Early intervention

3. Formal procedures (Investigation)


1. Self-management Approach

Complainant approaches respondent directly

Everyone has the right to complain – duty to do so constructively

Describe behaviour and explain impact

Don’t label the respondent (goodwill)

Staff should learn how to respond appropriately when being confronted for their behaviour

34


2. Informal Resolutions

Emphasis on:Resolution Importance of early intervention

Suitable for Less serious allegationsPerson responsible may admit the behaviourAddress individual concern rather than systemic

or operational concernsParties likely to have ongoing contacts and

complainant wishes to pursue informal resolution


Informal Resolutions

Mediating disputesObjectives Resolve matter (s) Learn to work together in the future

Willingness of both partiesEncourage listening to each other Managers: Be fair, non-judgmental and impartial Role: Facilitate process, not impose outcomes Create conditions for effective communication to

occur

36

7


What is Mediation?

A structured process Comprising one or more sessions In which one or more impartial individuals,

without adjudicating a dispute or any aspect of it

Assist the parties to the dispute to:– identify the issues in dispute;– explore and generate options;– communicate with one another;– reach an agreement regarding the

resolution of the whole, or part, of the dispute.

(s.4, Mediation Ordinance)37 © Equal Opportunities Commission 2021 All Rights Reserved

What is Mediation: Key Points

VoluntaryConfidentialMediator: A neutral person

Advise / determine the processNot determine the content of dispute

Outcome: Controlled by parties, not imposed

38


Use of Mediation

Appropriate to Solve many types of workplace conflictsHelp parties learn to work together in the

futureShould not be used when

Parties unwilling to take part in the processComplainant wants to lodge a formal

complaintPrimary issue is non-negotiable Systemic issues

39


Mediator

WhoCould be supervisors, human resources

personnel Appointed by the organization

Role FacilitatorRegulator Listener Analyst

40


Mediator (cont’d)

Qualities Fair, non-judgmental and impartialNeutral to the disputeAccepted by the partiesAble to create conditions in which

effective communication can occur

41


Forms of Mediation

Shuttle Separate discussions with parties and

convey messages and settlement proposals between parties

Conference

42

8


Mediation Stages

43

1 • Preparation

2 • Set the stage

3 • Opening statements by parties

4 • Identify issues

5 • Explore options

6 • Reach agreement


Skills and Strategies

Private sessions

Explore issues and options in private

Parties speak freely about their concern

Reality testing

Active listening

Strategic questioning

44


Skills and Strategies (cont’d)

Reframing: essential skill in mediation Rephrase comment made by one party or

an exchange between the parties– Conducive to resolution– Into statement about speaker’s needs

and values Reframe aggressive/accusatory statement

into more neutral, non-blaming one Reorientate message from negative to

positiveMove from people to issue Focus on the present rather than the pastMutualise concerns

45


Skills and Strategies (cont’d)

OthersWatch for non-verbal communication

e.g. body languageUse open-ended questions to

encourage communicationAcknowledge breakthroughs and

encourage resolutionsCombine different forms of mediation,

e.g. use of face-to-face conference and in-person shuttle

46



Advantages

Can deal with a significant proportion of workplace issues

May be less intimidating than formal approachLess punitive than formal approach Involve less work than formal approachCan deal more quickly with concernsMore likely to encourage open communicationFlexible



Disadvantages

Not guarantee respondent a chance to put their side of the story

Power dynamics may unfairly influence the outcome

May actually escalate the problemConsequence of behaviour not necessarily made

clearResolution may not be enforceable

48

9



Disadvantages

Absence of guidelines may lead to inconsistent decisions and outcomes

No formal record of steps taken to remedy situation if problem later escalates or legal action is taken

Management cannot track repeat problems


3. Formal Procedures

When to use

Complainant‘s wish from the outset Informal attempts at resolution have failedComplaint involves serious allegations of

misconduct and informal resolution could compromise the rights of the parties

Complaint is against a more senior staff memberAllegation is deniedComplainant has been victimised

50


Formal Procedures

Advantages

Consistency: Steps specified in detailFormal record is kept which can be produced to

an external agency if requiredClear and enforceable outcomesResolutions can be monitoredComplainant may be vindicated and may also be

empowered


Formal Procedures

Advantages

Respondent is informed of seriousness of behaviour and potential consequence

Confidentiality is supported because formal procedures generally specify serious consequence for breach of confidentiality

Mechanism to deal with workplace complaint as well as specific individual complaint

52


Formal Procedures

Disadvantages

Formality and potential punitive outcome may discourage some people

Formality of procedure may inadvertently take away complainant’s choice and control of complaint

Can take much longer than informal approach Inflexible because steps are set out


Formal Procedures

Key messages

Few workplace complaints escalate to this level but when they do, it is imperative to have a clear procedure in place which can be consistently implemented

Ideally, all other avenues for redress should have been explored by this point

54

10


Information

Consider: For staff, who can approach for information about their options?Section heads / local management / supervisorsHuman resources………

Where would these information be available? Are they accessible?

Information should be both about their rights and responsibilities


Assistance and Support by Complaint Handlers

Set aside sufficient time

Ensure privacy

Explain confidentiality

Explain the purpose of note taking

Maintain neutrality

Listen

Respond and not react

Ask open-ended questions56


Assistance and Support by Complaint Handlers

Communicate organization's commitment to create safe workplace and to provide mechanisms for resolving complaints

Assurance of right to raise concern

Available support from the organization

Empower the complainant (does not mean directing them to take certain action)

Explain policy and procedures

Help sort out the complaint57


Sorting Out the Complaint

By going through this process you will assist parties make an informed decision

1. Issues2. Options3. Outcomes

58


Part CIssues of Investigations


Investigating Formal Complaints

Issues

Process: Timeframe, etc.

Principles: Confidentiality, conflict of interest, procedural fairness, substantive fairness, etc.

Assessment: Evidence, standards of proof, decision-making, recommendations, etc.

Documentation

60

11


Clear and Simply Process

Objective: Effective handling of complaints

Process put in writing, using simple language Accessible to ALL employees

State clearly core principles Stages of complaint handling process are clearFlowchart serves as an easy guide

Special considerations for sensitive issues in sexual harassment


Timeframes

TimelinesTimelines set for each stageReduce stress on partiesGuidelines for complaint handler

TimelinessAct promptlyGive the investigation priority over other work

commitments

62


Confidentiality

Confidentiality vs secrecy

On “need to know” basisComplainantRespondentWitnessesHigh level managementHuman resources staff

Breach: Disciplinary action


Conflict of Interest

Consider

Reasons you should not be involved?Are you impartial? Will others perceive you as impartial?Have you pre-judged the situation? Any gender implications?

64


Natural Justice – Legal Principles (1)

• The principles of natural justice apply in relation to any decisions or processes which affect the rights, interests or expectations of others

• The elements of natural justice are:

The right to an unbiased decision maker

The right to a fair hearing



• Any discretionary decision-making power should be exercised according to

the merits of the particular case

not by the inflexible application of a policy or rule irrespective of the merits

66

12



• The right to a fair hearing means that both parties must:1. Be informed of the allegations: nature,

scope, dates, parties involved and substantive elements

2. Be given an opportunity to put forward their point of view by way of documents or other evidence

3. Have adequate notice of any conference or hearing



4. Not be subjected to undue delay in the hearing of the matter

5. Not be made to have their case heard together with another complaint against the same person if the allegations are different

68


Procedural Fairness

Complaint handler must be unbiased and not pre-judge

Support persons to be available Respondent fully informed of allegation and given

opportunity to defend him/herself All relevant information must be considered Irrelevant matters should be discounted Complainant must not determine the outcome Parties be informed of progress Possible outcomes explained


Substantive Fairness

Consider

Time lapse between alleged incident and making of complaint

Supporting information from partiesPrior conduct of partiesCorroborative witnesses

Assess credibility of parties (complainant / respondent / witnesses)

70


Beware of “Apprehended Bias”

Not a question of whether the decision-maker is biased

But whether a fair minded person would reasonably expect the decision-maker would not resolve the problem with fair and unprejudiced mind because he/she hasPrejudged issue(s)Perceived attitude to a person or class of persons


Evidence

Gather information to determine if alleged conduct had taken place

Assess information if alleged conduct constitutes sexual harassment

Onus of proof1. Complainant2. Respondent

Standard of proof: On the balance of probabilities

72

13


Standard of Proof

“On balance of probabilities”

More probable than not that the respondent committed the alleged unlawful acts

The more serious the likely consequences for the respondent if the allegation is proven, the greater the weight of evidence that is required for the decision maker to be satisfied that the allegation is proven


Decision-making

Consider:

Can the decision be justified?

What is a fair outcome?

The recommendations

74


Outcome

Disciplinary action against individuals may include:

Verbal warningSuspension without payWritten warningTrainingTransfer / reassignment of dutiesMandatory referral to counsellingDismissal


Mitigating Factors

May consider

Respondent’s personal circumstancesHis/her employment history / performanceWhether he/she has been cooperative during the

investigationWhether he/she has shown contrition for

misconduct

76


Other Issues

Appeal mechanismShould there be one? If so, handled by more senior level, not complaint

handler

Inform relevant parties of the final stage

MonitoringOutcome: Compliance, timeframeTrend: Staff behaviourPreventive measures


Documentation

Keep detailed notes of ALL discussions Document the process and the investigation Investigation conducted: How and what outcome Investigation not conducted: Why

Think throughWhat records need to be keptWho will keep the records / will have the access

Establish complaint filing system Standard forms / formats can be useful

78

14


All complaints should be treated…

Seriously

Professionally

Impartially

Confidentially

In a timely manner


Part DSkills of

Writing Investigation Report

80


Writing Investigation Report

1. Facts

2. Disputed facts

3. Substance (legal issues examined)

4. Applicability of exceptions or exemptions


Writing Investigation Report (cont’d)

5. Information provided by

third parties

witnesses

6. Recommendation(s)

7. Rationale

82


Hong KongEqual Opportunities Commission

Tel: (852) 2511 8211 Website: www.eoc.org.hk

DISCLAIMERAll the materials used in this training are for the participants’ referenceonly, and they are no substitute for legal advice. If you have anyenquiries or you need further information, please contact the EOC in HK.

COPYRIGHTThis work is copyright © EOC. Apart from any use as permitted underthe Copyright Ordinance, Cap. 528, no part may be reproduced by anyprocess without prior written permission from the EOC in HK.

part a definition and scope of sexual harassment

Documents