Anti-Sexual Harassment Bill in Malaysia to Extend Beyond the Workplace

The Anti-Sexual Harassment Bill 2021 (“the Bill”), first tabled on 15 December 2021, was passed by the Dewan Rakyat (House of Representatives) on 20 July 2022; it will now proceed to the Senate.  The new law will cover incidents beyond the workplace, and include sexual harassment in locations including educational institutions, sporting clubs, health clinics, public transport and online. 

Until now, the issue of sexual harassment has sat within the Employment Act (1955) and has provided limited scope for victims to pursue redress from the perpetrator.  The new law defines sexual harassment as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to their well-being” (with the word reasonably an addition to the definition currently in the EA). 

The new bill will establish a closed-door tribunal, enabling victims of sexual harassment to report a case and have it heard and closed within an expected 60-day timeframe.  The tribunal will have the authority to hear cases, provide judgement, award compensation and direct perpetrators to issue an official apology if at fault.  Compensation or damages of up to RM250,000 (US$56,000) can be awarded, and a failure to comply with a ruling can result in further fines or imprisonment.  

While some observers are concerned that definitions within the new law do not extend far enough to protect victims of harassment, the law provides two important new elements.  Firstly, the inclusion of the word ‘reasonably’ allows for a broader interpretation as societal norms change.  Secondly, the closed-door tribunal provides a forum for both victims and perpetrators to protect their confidentiality throughout the process.  

Outlook for employers: The new law indicates that an individual has recourse either through the Tribunal or the courts – but not both (unless there is a criminal act).  This could present a quandary for victims within an employment setting, where both a perpetrator and the employer could be liable for the sexual harassment and/or creating a hostile work environment.