Equal Opportunities Commission1 Sexual Harassment on Campus Margaret Wu Training Consultant Equal Opportunities Commission

2 Scope of legislation  Sex Discrimination Ordinance, Cap. 480  Sexual harassment unlawful  Employment  Employment (section 23)  Educational establishment  Educational establishment (section 39)  Provision of goods, services and facilities  Provision of goods, services and facilities (section 40(1))

Equal Opportunities Commission3 Ed Education Establishment  Educational establishment sexual harassment (section 39)  Student harasses student  Responsible body or staff harasses student, and vice versa  The law recognizes that sexual harassment can occur between same sex or different sex, and that woman can harass man

Equal Opportunities Commission4 Defining sexual harassment  Two types of sexual harassment conduct of a sexual nature 1)Unwelcome conduct of a sexual nature ( 不受歡迎涉及性 的行徑 ) directed at the victim (section 2(5)(a)) sexually hostile work environment 2)Conduct of a sexual nature creating a sexually hostile work environment ( 在性方面 有敵意的工作環境 ) (section 2(5)(b))

Equal Opportunities Commission5 1) 1) Unwelcome conduct of a sexual nature advance  Makes an unwelcome sexual advance; or request for sexual favors  Makes an unwelcome request for sexual favors; or other  Engages in other unwelcome conduct of a sexual nature  Gestures and conversations with sexual meaning  Jokes with sexual meaning  Inappropriate physical contacts  Yuen Sha Sha v Tse Chi Pun (1999, HK): secret video

Equal Opportunities Commission6 1) 1) Unwelcome conduct of a sexual nature targeted at  Conduct is targeted at the individual (victim) reasonable person  A reasonable person, having regard to all the circumstances, would have anticipated that the victim would be offended, humiliated or intimidated

Equal Opportunities Commission7 Elements constituting sexual harassment  To constitute sexual harassment the behaviour must be  Unwelcomed  Unwelcomed ( 不受歡迎的 );  Sexual in nature  Sexual in nature ( 涉及性的 ); and  Offensivehumiliating intimidating  Offensive ( 冒犯 ), humiliating ( 侮辱 ) or intimidating ( 威嚇 ) to the receiving end

Equal Opportunities Commission8 Determining what’s unwelcome  Unwelcome vs. Friendly Behaviour  If the behaviour is perceived as unwelcome it is no longer friendly behaviour, e.g. (not limited to)  The person did not solicit or incite the conduct; or  Regarded it as undesirable or offensive; or  Unwanted attention in a non- reciprocal relationship

Equal Opportunities Commission9 Ask these questions:  Would my comments/behaviour change if my spouse, child, sibling or parent was in the room?  Would I want someone else to use the same language/behaviour with my spouse, child, sibling or parent?  Would I want any of my behaviours to be the subject of a column in the local newspaper or to appear on the evening news?

Equal Opportunities Commission10 Conduct “of a sexual nature” sexual connotation  Have some sort of sexual connotation  Can be  verbal, non-verbal or physical  blatant or subtle  intentional or unintentional

Equal Opportunities Commission11 Intent vs. Impact  Intent  Intent is ordinarily irrelevant  The fact that the person did not intend to sexually harass another is generally not considered a defense effect characteristics  It is the effect and characteristics of behaviour that matter  A person’s failure to object to certain sexual behaviour is not considered a defense

Equal Opportunities Commission12 Reasonable Person Standard  No bright line test for determining sexual harassment  Reasonable Person Standard  Reasonable Person Standard to determine if the conduct would be offensive to a person of average sensitivities  In the same or similar circumstances as the victim (Man on Bus)  Recognizing the difference between how a person from relevant gender might react to same behaviours

Equal Opportunities Commission13 Examples/ on campus scenarios  Jasmine was having trouble with her economics class. She went to her Teaching Assistant, Joshua, for extra help. After a couple of tutorial sessions, Joshua asked Jasmine out. She declined it but he continued to ask her out. Finally, Jasmine felt so uncomfortable that she stopped going for help and even skipped the lectures. Joshua began to send her notes and to ‘run into her’ in areas where he did not go before. unwelcome conduct of a sexual nature

Equal Opportunities Commission14 Examples/ on campus scenarios  Cassidy liked wearing mini-skirts and body-fitting outfits. She seemed to enjoy the extra attention she received from others. When she led class discussion for History 101, several of her classmates from the back of the classroom made sexually suggestive remarks, called her a “pork chop” and pointed and leered at her breasts. unwelcome conduct of a sexual nature

Equal Opportunities Commission15 Examples/ on campus scenarios  Roger is a fourth year Ph.D student in religious studies. Professor Wong has been his adviser for three years. Roger and Professor Wong are required by the university to meet on a regular basis to discuss his progress. About mid-way through the semester, Professor Wong suggests that they begin meeting at her home during the evening for the “sake of convenience.” Roger accepts and thinks nothing of it until one evening, Professor Wong tries to seduce him. Roger is stunned and leaves abruptly. For the next few months Roger avoids all but formal contact with Professor Wong. Professor Wong tells him off for slacking off and threatens to fail him. unwelcome conduct of a sexual nature

Equal Opportunities Commission16 2) Sexually Hostile Environment Apers eng sexually hostileintimidating work environment A person alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment.

Equal Opportunities Commission17 2) Sexually hostile work environment hostile work environment  Conduct of a sexual nature creating a hostile work environment  Display of pornographic material, general sexual jokes among a group, posters and banners  Victim is not targeted  Does not apply to harassment in educational establishments

Equal Opportunities Commission18 Examples/ on campus scenarios  From time to time, a group of students hang out in front of the dining hall and rate female students (from 1 to 10) as they leave the building. Some women avoid that dining hall because of this behaviour. Sexually Hostile Environment

Equal Opportunities Commission19 Examples/ on campus scenarios  Poppy is a lab assistant working with a university research team. The team is predominantly male. She soon finds nude pictures of women as screen savers on her colleagues computers. They also like to exchange obscene jokes to each other in her presence. Sexually Hostile Environment

Equal Opportunities Commission20 Examples/ on campus scenarios  Students from different sorority or fraternity groups shouting vulgar slogans, calling each other “whore,” “gigolo,” “slut,” “bar trash,” etc. during the uni- versity “rush week”. Sexually Hostile Environment

Equal Opportunities Commission21 What to do if sexually harassed?  Say “NO”! ter  Write a note/letter  Keep a record  Seek help

Equal Opportunities Commission22 Victimisation less favourably  Unlawful to treat less favourably a person who has  Made allegation or complaint of sexual harassment  Given evidence or information  Brought proceedings

Equal Opportunities Commission23 Liab Liabilities/Responsibilities  Individual  Individual staff or student liable for his/her own unlawful act  Employer  Employer liable for sexual harassment done by employees  Educational establishments  Educational establishments liable for sexual harassment committed by staff students  No similar provision in respect of liability for students sexually harassing other students or staff members

Equal Opportunities Commission24 Employer’s defence  Reasonable and practicable measures  Reasonable and practicable measures to prevent unlawful acts in workplace EO Policy  Establishment of an EO Policy Complaint Handling Mechanism  Establishment of an appropriate Complaint Handling Mechanism ppointing a person  Appointing a person to be responsible for EO matters training  Organizing anti-discrimination training on a regular basis for all employees

Equal Opportunities Commission25 Possible Amendment  Liability for sexual conduct creating a sexually hostile environment at or in relation to an educational establishment  Educational establishments to be made liable for unlawful sexual harassment done by students.

Equal Opportunities Commission26 Preventives  Mainstream EO concepts through education  Establish clear policy and procedure  Early intervention

Equal Opportunities Commission27 Disclaimer All the materials used in this training are for the participants’ reference only, and they are no substitute for legal advice. If you have any enquiries or you need further information, please contact the Equal Opportunities Commission at our hotline or visit our website at