SEXUAL HARASSMENT IN THE LEGAL WORKPLACE

Why This Matters to You

​

Sexual harassment occurs in legal workplaces. It is committed by and against people of all genders. It happens in law firms, courtrooms, client meetings, police stations, and prisons, in person and online. The Baseline Study found that 9.7% of respondents had experienced some form of sexual propositioning in the course of their work. The people responsible included colleagues, bosses, clients, prison guards, police officers, and a judge.

 

You need to understand sexual harassment for three reasons. First, you may experience it. Second, you may witness it happening to a colleague. Third, as a lawyer and eventually as an employer or senior practitioner, you bear professional and legal obligations in relation to it.

 

Definition and Forms

 

The Anti-Sexual Harassment Act 2022 (Act 840) ("ASHA") defines sexual harassment as any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural, or physical, directed at a person, which a reasonable person would consider offensive, humiliating, or a threat to that person's wellbeing. The same five forms appear across the Employment Act 1955 (as amended in 2012) and Bar Council Ruling 14.29.[3]

 

Verbal harassment includes inappropriate remarks about appearance or body parts, use of terms of endearment such as "darling" in a professional setting, sexually loaded jokes, and offensive language. Non-verbal harassment includes leering, ogling, and sexual gestures. Visual harassment includes the display of sexually explicit or suggestive materials.

 

Physical harassment includes unwanted touching and physical contact of a sexual nature without consent.

The 1999 Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace identifies two broad categories: sexual coercion, where a benefit or threat is tied to the sexual conduct, and sexual annoyance, which encompasses behaviour creating a hostile or offensive environment without an explicit quid pro quo. Both constitute harassment.

 

The standard against which conduct is measured is that of the reasonable person. The test is not the intention of the person engaging in the conduct but whether a reasonable person would consider it offensive, humiliating, or threatening. A remark is not excluded from the definition merely because the person who made it did not intend it offensively.

 

How Harassment Operates: Recognising the Patterns

 

The AWL Baseline Study (published in 2014) identified three categories of sexual harassment experienced by respondents: suggestive remarks and verbal harassment, physical harassment, and suggestive invitations. Suggestive invitations are frequently the most difficult to navigate because the conduct itself appears, in isolation, to be professional or social rather than sexual. The ambiguity is often deliberate.

 

Younger lawyers were disproportionately targeted. Eight of the female lawyers who experienced sexual propositioning were 40 years old or below; all three male lawyers who reported incidents were between 20 and 30 years old or still new to the profession. This pattern is consistent with research in other jurisdictions: junior lawyers, who are dependent on senior practitioners for mentorship and professional development, are more vulnerable precisely because of that dependency.

 

Those who experienced harassment described feeling uncomfortable, upset, angry, shocked, disrespected, and violated. Some experienced self-blame. Most did not formally report the incidents, for reasons addressed below.

 

Power, DARVO, and the Dynamics of Complaint

​

Sexual harassment is, at its core, a manifestation of unequal power relations. It occurs most frequently when one person has authority or institutional standing that the other does not, and when that asymmetry creates an environment in which the person with less power feels unable to object or report.

​

The concept of DARVO: Deny, Attack, Reverse Victim and Offender

​

This describes the response of a person accused of harassment who first denies the conduct, then attacks the credibility or motives of the complainant, and then repositions themselves as the true victim. Awareness of this pattern is important for those who have experienced harassment and for those in a position to receive or investigate complaints. The rhetorical force of a counter-narrative is not a substitute for a proper investigation of the underlying facts.

​

The Baseline Study documented why victims and survivors frequently do not report formally: they considered the incident a one-off event they could manage; they believed it would be difficult to prove; and they feared the impact on their career in a tight-knit community. Fear of professional consequences, concern about the difficulty of proving what occurred, and the risk of retaliation are the primary barriers. This does not mean that reporting is futile. It means that those who design reporting mechanisms bear a serious responsibility to make them genuinely safe and genuinely confidential.

​

The Malaysian Bar's Position

 

Bar Council Ruling 14.29, approved by Circular No. 485/2021, provides that any act of sexual harassment by an Advocate and Solicitor or a pupil in a professional capacity or in a professional setting amounts to misconduct under Section 94(3) of the Legal Profession Act 1976. A finding of misconduct may result in disciplinary sanctions including, in serious cases, striking off. You are subject to this regime from the commencement of your pupillage.[4]

 

The Legal Framework

 

Several legislative instruments are relevant and interact with each other.

 

ASHA 2022 came into full effect progressively from October 2022, with the Tribunal for Anti-Sexual Harassment operational from March 2024. ASHA applies beyond the workplace and covers sexual harassment in any aspect of everyday living. The Tribunal has exclusive jurisdiction over sexual harassment complaints not already subject to court proceedings. Hearings are closed to the public; legal representation is generally not permitted unless complex legal issues arise. The Tribunal may order a formal apology, payment of compensation of up to RM250,000, and attendance at corrective programmes. Its decisions are final and binding. As at June 2024, four complaints had been lodged and the first decision issued on 12 July 2024, resolved within the 60-day period required by the Act.

 

The Employment Act 1955 (Part XVA) requires employers to investigate complaints of sexual harassment within 30 days of receipt. Part XVA applies to all employees in Peninsular Malaysia and Labuan, regardless of salary level. If the harassment is proven, the employer may take disciplinary action including dismissal of the harasser.

 

The Penal Code provides criminal sanctions. Section 509 criminalises words or gestures intended to insult the modesty of a person. Section 354 addresses assault with intent to outrage modesty. Section 507A, in force from 31 May 2023, introduced an anti-stalking offence.

 

Section 20 of the Industrial Relations Act 1967 provides a further avenue through claims of constructive dismissal. A person who resigns as a direct result of sexual harassment creating intolerable conditions may claim that their resignation constituted constructive dismissal. Four elements must be established: a fundamental breach of the employment contract; a breach sufficiently serious to justify resignation; resignation in response to the breach and not for an unrelated reason; and no unreasonable delay before resigning. A claim must be lodged with the Director General of Industrial Relations within 60 days of resignation.

 

Key Case Law

 

Beatrice AT Fernandez v Sistem Penerbangan Malaysia and Anor [2005] 2 CLJ 713

 

The Federal Court held that Article 8(2) of the Federal Constitution does not extend to conduct by private parties under private contracts. A collective agreement requiring female flight attendants to resign upon pregnancy was upheld as a lawful term of a private employment contract. Constitutional protections operate in the domain of public law and do not reach private contractual arrangements between private parties. Despite the subsequent amendment of Article 8(2) to include gender, and Malaysia's ratification of CEDAW, the Federal Court's position that CEDAW does not have the force of law in Malaysia without domestic enacting legislation was upheld in Air Asia Bhd v Rafizah Shima Binti Mohamed Aris [No. B-02-2751-11/2012]. Female lawyers in the private sector who are subject to discriminatory contractual terms have, in general, no constitutional cause of action against their private employer.

 

Noorfadilla bt Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 MLJ 832

 

The High Court held that withdrawing the plaintiff's public sector teaching appointment on the grounds of pregnancy violated Article 8(2) of the Federal Constitution. Because the employer was a government entity, the constitutional protection was engaged. The Court applied Article 1 of CEDAW in defining discrimination against women. This decision stands in important contrast to Beatrice Fernandez and confirms that the constitutional protection is available against state employers.

 

Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor Civil Appeal No. 01(f)-13-06/2013 (W)

 

The Federal Court recognised the tort of sexual harassment as part of Malaysian law, holding that its hallmarks are its unwelcome character and its quality of causing disturbance or annoyance to the victim through verbal or physical conduct including sexual innuendos, suggestive comments, obscene gestures, and leering. The Court emphasised that sexual harassment is a very serious misconduct that, in whatever form it takes, cannot be tolerated. It lowers the dignity and respect of the person harassed and affects their mental and emotional wellbeing. This decision remains the cornerstone of the civil law framework for sexual harassment in Malaysia.

​

Being an Upstander: The 5 Ds

​

The 5 Ds are five responses available to a person who observes conduct that may constitute sexual harassment or that creates a hostile environment for a colleague.

​​

• Direct: Address the conduct firmly but calmly in the moment.

• Distract: Create a diversion that interrupts the conduct without direct confrontation.

• Delegate: Enlist the assistance of another person with the standing or authority to intervene.

• Delay: Follow up with the targeted person after the event to check on their wellbeing and offer support.

• Document: Record what was observed, including who was involved, when and where, and what was said or done.

 

Witnessing harassment and doing nothing is a choice with its own consequences. Bystander intervention is not mandatory under any rule of professional conduct, but it is consistent with the values of the profession and with the obligation to maintain a working environment in which all practitioners can work with dignity.

 

Employer Obligations and the Firm's Responsibility

 

Every law firm owes a duty of care to every person it employs to provide a safe and conducive working environment. ASHA creates the possibility of vicarious liability where harassment occurs within the organisation. A documented anti-harassment policy with a clear reporting mechanism is a fundamental element of discharging that duty and a practical risk management measure. Professional indemnity insurance does not ordinarily cover liability arising from sexual harassment within a firm.

 

For an effective policy, the firm must identify what constitutes prohibited conduct, how complaints are to be made, who will investigate them, how confidentiality will be maintained, and what protections exist against retaliation by either party. The investigation must be conducted by an impartial person applying the principles of natural justice. The KL Bar Gender, Equality and Diversity Committee policy provides a recommended step-by-step grievance procedure available through the Malaysian Bar website and adaptable by any firm at essentially no cost.

 

The Peer Support Network

 

The Malaysian Bar's Peer Support Network (PSN) was established to address a specific gap: the absence of a neutral, confidential space in which victims and survivors could discuss their experience and understand their options without the immediate pressure of a formal complaint. PSN Case Handlers are members of the legal profession trained to offer confidential support and practical guidance, including information on available avenues such as a complaint to the employer, a complaint to the Advocates and Solicitors Disciplinary Board, a police report, a civil suit, or a claim before the Tribunal.

 

If you are aware of a victim or survivor of sexual harassment in the legal workplace, you may refer them to the PSN. Referral begins with the victim or survivor lodging written feedback through the Malaysian Bar website or the respective State Bar websites. If you wish to become a Case Handler, you may register through the Malaysian Bar. Training encompasses two online programmes and seven hours of supervised practical training.