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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
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Part ADefinition and Scope of
Sexual Harassment
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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
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What is Sexual Harassment ?
1. Person to Person
2. Sexually Hostile or Intimidating Environment
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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
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A reasonable person, having regard to all the circumstances, would have anticipated that Y would be offended, humiliated or intimidated.
Subjective Test
Objective Test
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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
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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
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• Jan 2019
• Territory-wide study on SH of university students in Hong Kong
• 14,422 questionnaires received
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Conduct of a Sexual Nature
Physical
Visual
Verbal
Intentional / unintentional
Single / repeated incidents
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Some Examples (1)
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• 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
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Some Examples (2)
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• 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
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Unsolicited/uninvited
Unreciprocated
Undesirable
Unwelcome
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Reasonable Person Test
• Objective standard
• Reasonable person’s anticipation of reaction in same or similar circumstances
• Stereotypical notions should not be considered
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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
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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).
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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
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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
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Applicable Fields
The fields covered relate to our public life. Examples:
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• Employment
• Provision of goods, facilities and services
• Education, etc.
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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.
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Relationships Governed
Provision of GFS
Service Users
Service Providers
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Relationships Governed
Education
StudentsTeachers / Staff
StudentsStudents
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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
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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.
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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
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The University of MacauGuidelines for Handling Sexual
Harassment and Sexual Bullying Cases
Effective Date: Feb 2019
Content:
General Principles
Definition
Applicability
…
Processing of complaints
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Part BOptions for Resolving
Sexual Harassment Complaints
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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Mediator
WhoCould be supervisors, human resources
personnel Appointed by the organization
Role FacilitatorRegulator Listener Analyst
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Mediator (cont’d)
Qualities Fair, non-judgmental and impartialNeutral to the disputeAccepted by the partiesAble to create conditions in which
effective communication can occur
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Forms of Mediation
Shuttle Separate discussions with parties and
convey messages and settlement proposals between parties
Conference
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Mediation Stages
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1 • Preparation
2 • Set the stage
3 • Opening statements by parties
4 • Identify issues
5 • Explore options
6 • Reach agreement
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Skills and Strategies
Private sessions
Explore issues and options in private
Parties speak freely about their concern
Reality testing
Active listening
Strategic questioning
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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
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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
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Informal Resolutions
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
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Informal Resolutions
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
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Informal Resolutions
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
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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
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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
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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
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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
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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
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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
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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
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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
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Sorting Out the Complaint
By going through this process you will assist parties make an informed decision
1. Issues2. Options3. Outcomes
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Part CIssues of Investigations
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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
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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
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Timeframes
TimelinesTimelines set for each stageReduce stress on partiesGuidelines for complaint handler
TimelinessAct promptlyGive the investigation priority over other work
commitments
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Confidentiality
Confidentiality vs secrecy
On “need to know” basisComplainantRespondentWitnessesHigh level managementHuman resources staff
Breach: Disciplinary action
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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?
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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
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Natural Justice – Legal Principles (2)
• 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
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Natural Justice – Legal Principles (3)
• 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
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Natural Justice – Legal Principles (4)
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
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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
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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)
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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
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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
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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
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Decision-making
Consider:
Can the decision be justified?
What is a fair outcome?
The recommendations
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Outcome
Disciplinary action against individuals may include:
Verbal warningSuspension without payWritten warningTrainingTransfer / reassignment of dutiesMandatory referral to counsellingDismissal
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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
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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
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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
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All complaints should be treated…
Seriously
Professionally
Impartially
Confidentially
In a timely manner
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Part DSkills of
Writing Investigation Report
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Writing Investigation Report
1. Facts
2. Disputed facts
3. Substance (legal issues examined)
4. Applicability of exceptions or exemptions
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Writing Investigation Report (cont’d)
5. Information provided by
third parties
witnesses
6. Recommendation(s)
7. Rationale
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Hong KongEqual Opportunities Commission
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