Sexual harassment – the Catch 22 for Foreign Domestic Helpers
Sexual harassment –
the Catch 22 for
Foreign Domestic Helpers
June 18, 2020
Sexual harassment is "the unwanted imposition of sexual requirements in the context of a relationship of unequal power” (Catharine MacKinnon, 1979). It is an injury that is not only predominantly and disproportionately directed against women, but also a harm with underlying social currents and especially pervasive where of and above the conventional relationship of power and authority between employer and employee is a vulnerability and economic dependence that is easily susceptible to exploitation. Given this perspective, it is not hard to see why Hong Kong’s foreign domestic helpers are easy targets for sexual harassment and even sexual assault.
While the #metoo movement has generated laudable success in raising awareness to the problem and has somewhat empowered women to stand up against their perpetrators through the share of common experience, the largest hurdle still exists for the majority of victims who are sexually harassed in their employment and whose perpetrator is the same person who hands them their meal ticket.
Whereas companies are obliged to establish a workplace policy against sexual harassment, in the case of domestic helpers, how do you seek redress if it almost inevitably leads to termination of employment?
Domestic helpers are victims of exploitation in many senses of the word:- They are treated as second class citizens with no entitlement to minimum wage; subjected to conditions of labour where they have practically no bargaining power; and made to live 24/7 with their employer, in most cases with no private space and time of their own to ‘escape’ from a suffocating work environment.
The power dynamic in the employment relationship tilts heavily against domestic workers, who are often desperate for the job and who have families waiting to be fed back in their home country. As such, any form of non-compliance, complaint, or pursuit of rightful remedies against abuse necessarily means sacrificing their livelihood and the means of survival for their family. With immigration regulation requiring foreign domestic helpers to leave within 14 days upon termination of employment, most domestic helpers simply have to grit their teeth and bear any maltreatment from employers, including, not surprisingly, sexual harassment and sometimes even sexual assault or rape.
In general, foreign domestic helpers, being migrant workers from another country speaking another language, are trapped in positions of vulnerability due to ignorance of circumstances, lack of option and resources, or simply the inability to leave employment to find suitable help.
Remedies under Sexual Discrimination Ordinance, Cap. 480 (“SDO”)
Under the SDO, sexual harassment includes unwelcome sexual advances, requests or conduct performed by a person in a position of power to a subordinate, in circumstances in which reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated. Sexual harassment also occurs when there is conduct of a sexual nature which creates an intimidating environment for the victim.
Under section 23(2) of the SDO, it is unlawful for a person to sexually harass his female employee; and section 76 allows a claim of sexual harassment to be subject to civil proceedings in like manner as any other claim in tort.
The claim in tort for sexual harassment is typically brought as a claim for trespass to the person and compensation is sought for physical and/or psychological injuries which include injuries against a person’s dignity and physical integrity.
The difficulty, however, lies always in proof or corroboration. In a ‘he said she said’ situation where the event happened in a private space involving only the victim and her perpetrator, credibility of witnesses is key, but where societal culture is one that is prejudiced against foreign domestic helpers as being conniving, untrustworthy or worse, as being less deserving of protection by virtue of race and employment status, the victim would find herself facing an uncertain uphill battle (not counting the lack of financial power to bring legal proceedings and the economic resilience to wrangle through litigation!).
The Catch-22
The foreign domestic helper is caught in a catch-22 situation. On the one hand, testing a claim for sexual harassment requires them to prove that the conduct is unwelcome, i.e. she has to show reluctance or demonstrate that the behaviour is repugnant to her. On the other hand, the nature (and culture) of the employment expects compliance and subservience as the perpetrator is also her employer who alone decides her economic survival.
Even when she has mustered the courage to file a complaint against her employer, bringing legal proceedings in Hong Kong is a lengthy process encompassing months and most likely years of complicated processes and extended waiting. Unless she can find new employment in Hong Kong, most foreign domestic helpers cannot afford to be without income. Their predicament is yet again exacerbated by the common belief of local prospective employers that a domestic helper who has brought action against her employer is one to be avoided because she is either feisty or contriving to entrap or both (i.e. not sufficiently docile).
Sexual harassment of foreign domestic helpers therefore exists as an invisible wrong, its tentacles reaching across social, cultural and economic and power dimensions.
Although legal remedies exist, the domestic helper’s circumstances are so stacked against her that she cannot avail herself of those remedies unless and only until there is change in public perception to properly recognize them as a vulnerable group susceptible to abuse and necessitating specific protections.
This quandary of exploitation and degradation in exchange for survival should not exist. As the cities’ homemakers, they deserve better.
For any further questions, feel free to consult our partner Ms. Evelyn Tsao by email (info@patriciahoassociates.com).