Justice On Hold: Why sexual harassment in the workplace often goes unreported
Shortly after starting a new job in September 2016, Winnie Leung’s* supervisor became fixated on her. He hovered around her at work and repeatedly expressed romantic feelings. Leung coped by deflecting his advances and trying to maintain some distance. But instead of backing off, his actions became increasingly physical and predatory.
In March of the following year, Leung found herself alone in a conference room with her supervisor. Inching closer, he began touching her shoulders before sliding his hands down her body without her consent.
“I immediately left the room, but I still felt very uncomfortable,” Leung says. “Just because he wants to be with me doesn’t mean he can just touch me like that.”
Leung considered filing a report, but her harasser also happened to be the most senior figure in the company. She eventually sent him a stern email, accusing him of harassment and threatening to resign if he didn’t stop.
“He knew I had no one else to whom I could report. He controlled my fate when it came to my salary, so he acted flippantly [when I confronted him in person] and carried on,” Leung says. “He didn’t treat no as a no.”
The email had the opposite of her intended effect. In the months following, he would touch her thighs or her breasts when they sat in front of a computer in one-on-one meetings.
Later that summer, he tried once again to coax her into a relationship. The supervisor called Leung into the conference room and expressed his desire for her. She again refused his advances and tried to leave, but this time he pushed her back.
Leung fell and hit her head; amid the chaos, she escaped and went to the police. Leung left the company soon after, frustrated that nothing had been done about her supervisor’s behaviour.
Nearly two years on, Leung is calm and matter-of-fact when recalling these events, but at the time, she was highly distressed: “I wanted to keep working there but I couldn’t stand how much pressure I was under every time I went into the office.”
Employers fall short
As the #MeToo Movement gained traction in Hong Kong, Leung was determined to seek justice and, assisted by sexual violence crisis centre RainLily, she lodged a formal complaint with the Equal Opportunities Commission (EOC) around four months after the incident in the conference room.
Leung’s case is just one of the 268 sexual harassment complaints filed to the EOC between 2017 and April 2019, according to figures provided by the equality watchdog. Of these, a staggering 83 per cent are employment-related, underscoring the prevalence of workplace sexual harassment in the city. The remaining incidents involve sexual harassment in schools, as well as in the goods and service industries.
In Hong Kong, sexual harassment is unlawful under the 1996 Sex Discrimination Ordinance (SDO). According to the SDO, sexual harassment occurs when an individual is faced with a sexually hostile or intimidating environment; unwelcome sexual advances or requests for sexual favours or any other unwelcome conduct of a sexual nature that is offensive, humiliating or intimidating.
Victims of sexual harassment can submit complaints to the EOC or lodge claims in the District Court within 12 or 24 months of the incident, respectively, and are entitled to reparations including a letter of apology, financial compensation, or enactment of equal opportunities policies. Victims may also be able to pursue criminal action under the offences of indecent assault or rape; such incidents will be investigated by the police and perpetrators may face prosecution.
A recent study by RainLily, which focuses on sexual violence cases between 2000 and 2018, shows that over 70 per cent of incidents that occurred in the workplace involved repeated harassment. According to the NGO, this is a result of the asymmetrical power balance between victim and perpetrator.
In addition, the common misconception that sexual harassment is less serious than other kinds of sexual violence, the report reads, empowers perpetrators to continue their actions without fear of the consequences.
Employers are required to provide a safe and harassment-free workplace and, under Section 46 of the SDO, could be liable for acts of sexual harassment committed by their employees.
The courts can also investigate whether anti-sexual harassment policies are in place when determining whether employers have discharged their liability properly. However, activists and experts say that, in reality, employers often fall short.
The size of businesses in Hong Kong is one of many contributing factors. Roughly 98 per cent are small- and medium-sized enterprises with fewer than 50 employees. Within a smaller company, the individual that a victim turns to for help could be the perpetrator and thus in a position to sweep incidents under the rug.
“A company may have progressive policies, but it’s just a piece of paper until it is put into action,” says Puja Kapai, a law professor at the University of Hong Kong.
This is especially true in Hong Kong where victims are often told to “give face” or not be “prudish” – and these cultural characteristics filter into the workplace environment. When victims do report an incident, harassers can make life very difficult for them.
“There’s the policy, and then there’s the reality,” Kapai adds. “When your paycheck is on the line you’re effectively asked to choose: do you want to eat, or do you want an apology? Do you want a promotion or do you want to talk about self-respect and dignity?”
“A company may have progressive policies, but it’s just a piece of paper until it is put into action,” says Puja Kapai.
Salt in the wound
Challenges exist not only for victims of sexual harassment in the workplace but for any individual seeking redress in sexual-related offences. They face obstacles every step of the way, including insensitive attitudes from medical staff and law enforcement.
In an email to Ariana, the police say they “attach great importance to professionalism in handling sexual offence cases and the provision of relevant training to frontline officers,” and that they will make “every possible effort to provide reasonable protection to the privacy of victims in sexual offences and to reduce their embarrassment and stress.”
The police also claim that upon receiving a report they assign a well-trained officer of the same gender to conduct the interview. They maintain that they do their best to “avoid further traumatic experience arising from the investigation process” and ensure that counselling is available through the Social Welfare Department and related NGOs.
However, when Leung reported her ordeal to the police, they turned her away. Before Leung could file a report, they said she would have to visit the hospital to treat her injuries. To comply with the officers, she waited over 10 hours at short-staffed Prince of Wales Hospital in Shatin before medical staff attended to her.
Following the exam, Leung requested an absence slip from the female doctor handling the case. She would need to miss one day of work to handle the necessary police procedures and recover from the experience. Leung expected sympathy but instead the doctor said it wasn’t the medical team’s concern, and besides, she “didn’t see any scratches” on Leung.
When she returned to the police station, an officer explained the next steps. Since she hadn’t filed her complaint at the station in the district where the incident occurred, Leung had to give three separate testimonies at three different police stations – a process that took roughly 12 hours.
In an email response, the police said this situation can occur “when a further statement from the victim is required” and “when the case is taken by another criminal investigation team” other than the local station.
Leung recalls the police officers challenging nearly every detail in her story, with one male officer brushing off the incident as trivial: “It’s not a big deal [the supervisor] just wants to be with you.”
Officers eventually persuaded Leung to drop the case, stating that her injuries were minor and that, without any eye-witnesses, it would be unlikely for a court to find the perpetrator guilty, even if there was a prosecution. “It felt like they were pouring salt on my wounds.”
That’s when she sought help from RainLily. The NGO arranged free counselling and three sessions of free legal consultation and, with their support, she reached out to the Equal Opportunities Commission. The watchdog assigned her a duty lawyer and she filed a complaint in February 2018.
Within three months, the EOC arranged a conciliation session with her supervisor, during which a facilitator served as a middleman, walking back and forth between the two rooms so that Leung would not have to communicate directly with her harasser. Leung successfully received a six-figure compensation for the monetary loss she incurred from leaving her job after the final incident in the conference room.
But it was only a partial victory. Leung was persuaded to drop the case – a process she describes as “regrettable” – and the criminal investigation was discontinued. Furthermore, the perpetrator remained in his job.
Many victims face similarly disappointing results because too many loopholes remain in the 23-year-old Sex Discrimination Ordinance, which experts say is in serious need of reform. Helena Wong, a Democratic Party legislator, notes that the law is severely limited as it only covers sexual harassment in select settings such as the workplace, schools, and the service industry.
Previously, only the sexual harassment of customers by service providers – and not vice-versa – was unlawful, meaning that those at risk of workplace sexual harassment, such as flight attendants, were not covered. An amendment in 2014 finally addressed this, but Wong says that only salaried staff are protected by the law. Whereas those who work without pay in a company, such as interns or volunteers, are not. A proposed amendment to solve this issue was discussed in the Legislative Council in May 2019, according to Wong.
Wong believes that a more comprehensive review of the law is necessary. For instance, in the education sector, the law fails to protect victims of sexual harassment if they attend a different school than their harasser, she says.
Society as a whole needs to create spaces that are safe for survivors.
Leung says her case serves as an example of the importance of public education – she would not have felt as lost or scared if there had been more information about what recourse she could take.
Like many women, she was inspired by the #MeToo Movement: “If it wasn’t for that, I wouldn’t have known that many others have gone through this or felt empowered by seeing them speak out. I would have given up already.”
Still, in Hong Kong, several cultural and societal hurdles deter many from seeking help, according to Kapai. These include a low level of public awareness of what constitutes sexual harassment; enduring cultural stereotypes around the role of women as a homemaker; and sex- and body-shaming.
Regardless of whether a victim goes through the civil or criminal route in seeking justice, there is “secondary trauma experience” in the procedures due to the number of times one has to repeat a story, Kapai says.
In a society that continues to blame the victim, “you really have to ask whether the gains to be made under the current remedies are likely to outweigh for any victim the cost that they entail, undergoing the trauma and double-trauma through Hong Kong’s courts and the process.”
Victims of sexual harassment have reported arduous, insensitive questioning by police officers handling their case.
Over the past two decades, a host of activists and organisations have repeatedly called for a one-stop crisis centre in Hong Kong’s hospitals where victims can undergo medical examinations and provide a statement to the police in one appointment, rather than being subjected to repeated trauma.
Though they lack any dedicated crisis centre, the police say they already offer “one-stop services” that aim to minimise trauma by sending a social worker to accompany the victim to all of the required appointments in a single day. The police say this service has been in place since 2007 and can be arranged “as far as practicable,” but they have no available figures on the number of times it has been utilised.
Critics such as RainLily and the Association Concerning Sexual Violence Against Women (ACSVAW) have argued that the government’s idea of a one-stop approach is insufficient, since it still requires victims to undergo a medical check-up, forensics examinations, several police interviews and repeat their story five to seven times at different locations across the city.
In Hong Kong, 18 out of 43 public hospitals currently provide two designated rooms for examinations within the respective Accident & Emergency Departments, however Rainlily and ACSVAW, among other organisations, have expressed concern about the programme’s implementation in a statement to lawmakers last year.
“The reality is that most AEDs have not been able to provide a room for such purposes,” reads the statement. “The victim is resulted to undergo procedures behind a cubicle curtain. This arrangement is lacking privacy and safety for victims of sexual violence, and it is far from an ideal location for the provision of a one-stop service.”
Instead, the organisations continue to recommend comprehensive, 24-hour crisis support centres at three public hospitals where victims can undergo police, judicial and health proceedings as well as seek emotional support – an arrangement that reflects the Guidelines for Medico-Legal Care for Victims of Sexual Violence published by the World Health Organization.
Ultimately, Kapai believes that the way forward involves not only changes to the law and reporting process, but greater awareness among the general public, police, doctors and courts.
“You can have the most beautifully drafted law, but it is only as effective as the agents or the officers who are in charge of implementing it,” says Kapai. “It is not only the law that needs to be more responsive. Society as a whole needs to create spaces that are safe for survivors, rather than a haven for perpetrators.”
*Name has been changed at the request of the victim.