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Sexual Harassment In The Workplace

The idea of “the corporate workplace” has changed significantly in recent years and nowadays there are more women to be found in positions that were previously filled only by men. Unfortunately this has given rise to the issue of sexual harassment in the workplace. In this article we focus on what sexual harassment is and what someone can do if they are being subjected to it.

Both men and women can be victims of sexual harassment; however, it is more common for this type of harassment to be directed at women in the workplace. According to Section 6(3) of the Employment Equity Act[1] (EEA) harassment of an employee is a form of unfair discrimination and is prohibited on any of the grounds of unfair discrimination, which includes gender. The test for sexual harassment, as set out in Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code), is whether the conduct is unwelcome, of a sexual nature, violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account the following factors:

  1. Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  2. Whether the sexual conduct was unwelcome;
  3. The nature and extent of the sexual conduct; and
  4. The impact of the sexual conduct on the employee.[2]

There are three types of conduct that can constitute sexual harassment:

  1. Physical conduct such as touching;
  2. Verbal conduct such as innuendos; and
  3. Non-verbal conduct such as showing another person sexually explicit photographs.[3]

Certain types of sexual harassment are common in the workplace. One such type is quid pro quo harassment, which is where someone is forced to give in to sexual advances to avoid losing their job or a job related benefit. Another type is sexual favouritism where only those who submit to sexual advances can progress or receive benefits in the workplace. There is also sexual victimisation, where those who do not submit to sexual advances are prejudiced. Lastly we have the scenario where jokes, pictures or innuendos create a hostile working environment which need not be directed against one specific employee.[4]

According to Item 8 of the Code there is an obligation on employers to develop clear procedures to deal with sexual harassment, which should enable the resolution of problems in a sensitive, efficient and effective way. Section 60(1) of the EEA provides that conduct in contravention with its provisions must immediately be brought to the attention of the employer. This means as soon as is reasonably possible in the circumstances and without undue delay, taking into account the sensitive nature of sexual harassment, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace. The victim of the sexual harassment need not be the one to bring it to the attention of the employer; any other person who is aware of the sexual harassment may also do so.[5]

Once the sexual harassment has been brought to the attention of the employer the employer should consult all the relevant parties, take the necessary steps to address the complaint in accordance with the Code and the employer’s policy, and take all the necessary steps, which are set out in Item 8.3 of the Code, to eliminate the sexual harassment.[6]

A complainant or another person may choose to follow an informal procedure, the first of which is to explain to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work. The second way of handling this is for an appropriate person to approach the perpetrator, without revealing the identity of the complainant, and explain that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.[7]

If a complainant does not find the abovementioned satisfactory then he or she can follow the formal procedure set out in an employer’s sexual harassment policy and/or collective agreement, which should outline with whom the employee should lodge a grievance, the internal procedures to be followed and time frames which will allow the grievance to be dealt with expeditiously.[8]

If the complainant is still not satisfied with the results a complaint of sexual harassment may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). It is important to note here that it is a disciplinary offence to victimise or retaliate against a complainant who in good faith lodges a grievance of sexual harassment.[9] 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Reference List:

Employment Equity Act, 55 of 1998

Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (4 August 2005)

A C Basson, M A Christianson, A Dekker, C Garbers, P A K le Roux, C Mischke, E M L Strydom: Essential Labour Law 5 ed (2009)

 

[1] 55 of 1998

[2] Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

(4  August 2005)

[3] AC Basson, MA Christianson, A Dekker, C Garbers, PAK le Roux, C Mischke, EML Strydom: Essential Labour Law 5

ed (2009) 223

[4] Basson et al: Essential Labour Law 5 ed (2009) 223

[5] Item 8.1 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[6] Item 8.2 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[7] Item 8.6 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[8] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[9] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

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