Introduction

What should you do when you find yourself on the receiving end of unwanted text messages from your supervisor or employer? Sexual harassment cases are not always based on inappropriate sexual contact and can arise from unwelcome text messages. In this regard, the District Court has jurisdiction to hear claims of sexual harassment under the Sex Discrimination Ordinance (Cap. 480) (“SDO”).   In a recent decision in X v Melvyn Kai Fan Lai [2019] 1 HKLRD 163, the District Court considered whether various text messages from a male supervisor to his female employee constitute sexual harassment.

Background

On 10 March 2016, the claimant-employee X commenced an action for damages for sexual harassment against her former supervisor ML and her former employer L&O, an architect firm. X’s complaints against ML can be broadly classified into two main categories:

• complaints that are clearly sexual, such as the touching of X’s buttocks and thigh, and the persistent staring and scanning of her body; and
• other complaints that are more subtle, such as sending X various text messages that made her feel uncomfortable.

As for L&O, X alleged that L&O lacked complaint or grievance procedure and office policy for sexual harassment, and failed to provide any anti-sexual harassment training to its staff.

ML and L&O denied the allegations and contended that X’s claim was time-barred based on section 86(2)(a) of the SDO, which requires proceedings to be instituted within 24 months from the alleged acts of sexual harassment.

At the outset, the Court dismissed X’s claim on the ground of passing of the limitation period alone, as there was no good explanation from X accounting for her substantial delay in commencing her claim. Notwithstanding this, the Court continued to discuss the merits of X’s complaints.

Discussion

Category (1): Blatant acts of a sexual nature

For the first type of complaints that are clearly sexual, the Court, on the facts of the case, found that there was insufficient evidence against ML. For instance, regarding X’s account of ML’s touching of her buttocks, the Court found that it was possible that she was in fact “touched” by the pen or notepad carried by ML. As for the alleged scanning and staring at X’s body, it was X’s evidence that ML’s gaze at her was different from the usual form of eye contact in an office environment because ML scanned her body from top to bottom to study her figure in detail and stared at her chest or lower body “for an inordinate amount of time” and “for not less than approximately five seconds”.  The Acting Chief District Court Judge Justin Ko observed that (at §113 of the Judgment):

“I accept that scanning a woman from head to toe and staring at a woman’s chest or lower body for an inordinate amount of time could…constitute sexual harassment. However, much depends on the circumstances…it is unavoidable in an office environment for colleagues to look at each other whether from a distance or during discussions. Sometimes, people engaging in deep thought may appear to be staring at others. There may also be innocent explanations as to why one would stare at or scan another’s body. For example, it is ML’s evidence that X had asked him to spin like a model when he wore designer shirts to work…”

Category (2): Acts of a subtle nature

For the latter type of complaints that are relatively subtle, it is necessary for X to succeed in establishing that the circumstances of her complaint were such that a reasonable person would have expected that such conduct would offend her.

It is X’s complaint that ML sent her text messages unrelated to work that made her uneasy, which concern, among others, the following:

• Invitations to take photographs (such as “My camera is itching and may do some photography Tue afternoon. Interested to come?”);
• Invitations to meals (such as “Will you be hungry for good food tmr evening?”);
• Invitations to travel together to and from work (such as “Page me if you wish to share taxi. Will finish dinner downstair (sic) around 11:15”); and
• Inquiries as to X’s health (such as “Take a hot water shower and this will put u to sleep” and “Is someone looking after you?”).

The Court applied the principle in the UK case of Miss S Majid v AA Solicitors Ltd t/a AA Solicitors, Asghar Ali, unreported, Employment Tribunals Case No 2409586/2013, 4 June 2014, and opined that where there is blatant act of a sexual nature or pattern of prior suggestive or personal remarks, the Court may find that innocuous text messages/conversations were in fact “sexual”. For example, in the UK case, the Tribunal found that a married employer’s message with a smiley face on it amounted to unwanted sexual conduct because (at §85 of the Judgment):

“…in the context of an evening where the claimant had been required to work late on her first day and to give her boss a lift home and that he had made suggestive remarks such as ‘we will have to chill properly some time’ that this amounted to unwanted sexual conduct.”

In addition, the Tribunal found that the claimant had politely rejected the advances made by her married employer in a consistent manner and took into account her evidence that “she had even asked her father to attend the office to meet with [her employer] to show she was a “nice family girl” and not the sort to encourage attention from a married man”.

In the present case, the Court held that there was nothing “sexual” in ML’s messages. Distinguishing the facts in the present case from the UK case, the Court refused to interpret ML’s messages differently due to the lack of blatant sexual conducts or any pattern of prior suggestive or personal remarks on ML’s part.  The contents of the impugned messages, such as invitations to get together socially outside office hours and share a ride after work, are common and normal between co-workers. Also, X’s replies to the impugned messages were friendly and light-hearted most of the time. In the absence of anything remarkable about the context, timing and nature of ML’s messages, it cannot be said that a reasonable person would have expected that X would be offended or intimidated by the messages.

Furthermore, X’s complaint that ML’s messages were excessively intrusive and personal was irrelevant, as the test is whether the messages concerned matters relating to “sexual activity, physical attraction or relationships” but not whether they were intrusive or personal.

As for L&O, since the Court found against X on her complaints against ML, there was no basis for any vicarious liability on L&O’s part.

Conclusion

In light of the above, employers and human resource managers should think twice before quickly dismissing sexual harassment complaints that are not based on obviously inappropriate sexual conduct. Where there is any blatant sexual conduct or pattern of prior personal or suggestive remarks on the part of the employer/co-worker, innocuous text messages may be valid grounds for employees to establish complaints of sexual harassment against the employer/co-worker. As such, employers and human resource managers should review their policies for handling such complaints.

In the meantime, whether text messages would constitute sexual harassment is highly dependent on the overall circumstances of each case. Employers, human resource managers and claimants-employees are advised to consult legal advisers first in order to properly assess the merits of such claims.