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Sexual harassment in the workplace

April 2014

Sexual harassment is often described as persistent, unsolicited and unwanted sexual advances or suggestions by one person to another.  Within the employment context our courts have held that sexual harassment, even between members of the same sex, was a serious matter that required employers to take action.  The amended Code of Good Practice on the handling of sexual harassment cases in the workplace, promulgated in terms of the Employment Equity Act, has objectives such as:

  • The elimination of sexual harassment in the workplace.
  • The provision of appropriate procedures to deal with sexual harassment and prevent its recurrence.
  • The encouragement and promotion of the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another's integrity and dignity, their privacy and their right to equity in the workplace.

The Code applies to owners, employers, managers, supervisors, employees, job applicants, clients, suppliers, contractors and others having dealings with the business.
Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation.
The grounds of discrimination to establish sexual harassment are sex, gender and sexual orientation.  Same sex harassment can amount to discrimination on the basis of sex, gender and sexual orientation.

Unwelcome conduct
There are varied ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.  Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.  Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek assistance and intervention of another person such as a co-worker, superior, councillor, human resource official, family member or friend.

Nature and extent of the conduct
The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct.

Physical conduct of a physical nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex.

Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex related jokes or insults, graphic comments about a person's body made in their presence or to them, inappropriate enquiries about a person's sex life, whistling of a sexual nature and sending by electronic means or otherwise of sexually explicit text.  Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.

Sexual harassment may include but is not limited to, victimisation, quid pro quo harassment and sexual favouritism.  Victimisation occurs where an employee is victimised for refusing to give in to the lecherous advances of the harasser.

Quid pro quo harassment on the other hand, occurs where a person who occupies a position of power in relation to the complainant threatens to withhold a tangible benefit like a promotion if the complainant does not give in to his or her advances.  It is not necessary that instances of sexual harassment occur over a sustained period of time.  Even a single incident is enough to fall within the purview of sexual harassment.

Employers are required to create and maintain a working environment in which the dignity of employees is respected.  A climate in the workplace should also be created and maintained in which complainants of sexual harassment will not feel that their grievances are ignored or trivialised.  Employers are required to, subject to any existing collective agreements and applicable statutory provisions in respect of sexual harassment, to adopt a sexual harassment policy which should take into consideration and be guarded by the provisions of the Code.

The contents of sexual harassment policy should be communicated effectively to all employees.  The adoption of a sexual harassment policy and the communication of the contents of the policy to employees should, among other factors, be taken into consideration in determining whether the employer has discharged his obligations in accordance with the provisions of section 60 subsection 2 of the Employment Equity Act.

Sexual harassment policies should substantially comply with the provisions of the Code and include at least the following statements:

  • Sexual harassment is a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation which infringes the rights of the complainant and constitutes an area to equity in the workplace.  Sexual harassment in the workplace will not be permitted or condoned.  Complainants in sexual harassment matters have the right to follow the procedures in the policy and appropriate action must be taken by the employer.
  • It is a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.  The procedures to be followed by a complainant of sexual harassment and by an employer, once sexual harassment has occurred, should be outlined in the policy.

A complainant of sexual harassment may choose to follow either of the following informal procedures:

  • The complainant or another appropriate person explains to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him/her feel uncomfortable and that it interferes with his/her work or an appropriate person may approach the perpetrator, without revealing the identity of the complainant and explain to the perpetrator that certain forms of conduct constitutes sexual harassment, are offensive and unwelcome, and make the employees feel uncomfortable and interfere with their work.
  • An employer should consider any further steps, which can be taken to assist in dealing with the complaint.
  • A complainant may choose to follow a formal procedure, either with or without first following an informal procedure.  In the event that a complainant chooses not to follow a formal procedure, the employer should still assess the risk to other persons in the workplace where formal steps have not been taken against the perpetrator.  In assessing such risk the employer must take into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment.  If it appears to the employer after a proper investigation that there is a significant risk of harm to other persons in the workplace, the employer may follow a formal procedure, irrespective of the wishes of the complainant, and advise the complainant accordingly.

The employer's sexual harassment policy and/or collective agreement should outline the following in respect of a formal procedure:

  • With whom the employee should lodge a grievance.
  • The internal grievance procedures to be followed, including provision for the complainant's desired outcome of the procedures.
  • Time frames which allow the grievance to be dealt with expeditiously.
  • That should the matter not be satisfactorily resolved by the internal procedures outlined above, a complainant of sexual harassment may refer the dispute to the Commission for Conciliation, Mediation and Abitration (CCMA).  An alleged perpetrator of sexual harassment may refer a dispute arising from disciplinary action taken by the employer to the CCMA.
  • That it will be a disciplinary offence to victimise or retaliate against the complainant who in good faith lodges a grievance of sexual harassment.

The employer's sexual harassment policy should specify the range of disciplinary sanctions that may be imposed on a perpetrator.  The sanction must be proportionate to the seriousness of the sexual harassment in question, and should provide that:

  • Warnings may be issued from minor instances of sexual harassment.
  • Dismissal may follow for continued minor instances of sexual harassment after warnings, as well as for serious instances of sexual harassment.
  • Inappropriate circumstances upon being found guilty of sexual harassment, a perpetrator may be transferred to another position in the workplace.

Excerpts of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace courtesy of LexisNexis Butterworths publications

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