Sexual Harassment on Campus

1. Sexual Harassment on Campus Margaret Wu TrainingConsultant Equal OpportunitiesCommission Equal Opportunities Commission

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

3. 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 Commission

4. Definingsexual harassment • Two types of sexual harassment • Unwelcome conduct of a sexual nature(不受歡迎涉及性的行徑)directed at the victim (section 2(5)(a)) • 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 Commission

5. 1) Unwelcome conduct of a sexual nature • Makes an unwelcomesexual advance; or • Makes an unwelcomerequest forsexual favors; or • Engages in otherunwelcomeconduct 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 Commission

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

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

8. 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 Commission

9. 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 Commission

10. Conduct “of a sexual nature” • Have some sort of sexualconnotation • Can be • verbal, non-verbal or physical • blatant or subtle • intentional or unintentional Equal Opportunities Commission

11. Intent vs. Impact • Intent is ordinarily irrelevant • The fact that the person did not intend to sexually harass another is generally not considered a defense • 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 Commission

12. Reasonable Person Standard • No bright line test for determining sexual harassment • 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 Commission

13. unwelcome conduct of a sexual nature 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. Equal Opportunities Commission

14. unwelcome conduct of a sexual nature 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. Equal Opportunities Commission

15. unwelcome conduct of a sexual nature 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. Equal Opportunities Commission

16. 2) Sexually Hostile Environment Aperson alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidatingwork environment. Equal Opportunities Commission

17. 2) Sexually 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 Commission

18. Sexually Hostile Environment 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. Equal Opportunities Commission

19. Sexually Hostile Environment 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. Equal Opportunities Commission

20. Sexually Hostile Environment 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”. Equal Opportunities Commission

21. What to do if sexually harassed? • Say “NO”! • Write a note/letter • Keep a record • Seek help Equal Opportunities Commission

22. Victimisation • Unlawful to treatless favourably a person who has • Made allegation or complaint of sexual harassment • Given evidence or information • Brought proceedings Equal Opportunities Commission

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

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

25. 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 Commission

26. Preventives • Mainstream EO concepts through education • Establish clear policy and procedure • Early intervention Equal Opportunities Commission

27. 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 2511-8211 or visit our website at www.eoc.org.hk. Equal Opportunities Commission