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Sexual Harassment

Legal Matters

In terms of our Constitution everyone is equal before the law and has the right to equal protection and benefit of the law. This includes the full and equal enjoyment of all rights and freedoms.  No person may unfairly discriminate against you or anyone else based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and or birth.  These rights must also be enforced in your place of work.

In terms of our Constitution everyone is equal before the law and has the right to equal protection and benefit of the law. This includes the full and equal enjoyment of all rights and freedoms.  No person may unfairly discriminate against you or anyone else based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and or birth.  These rights must also be enforced in your place of work.

Unfair discrimination in the workplace

The Employment Equity Act of 1998 states that all employees have the right to fair treatment and no one, neither fellow employee nor your employer, has the right to unfairly discriminate against you.

The Act places a duty on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination.  For example: when a colleague is sexually harassing you and you bring this under your employer’s attention, the employer must consult all relevant parties and take necessary steps to eliminate the conduct and ensure that the Act is being followed.  Should the employer fail to take these steps and the harassment can be proven, the employer will also be held liable, except where the employer can show that he/she did all that was reasonably practicable to follow the Act.

Sexual harassment is a form of discrimination

Harassment is a form of unfair discrimination and is therefore prohibited conduct. Sexual harassment is also a violation of your rights to human dignity and privacy. The most common form of harassment in the workplace is by far sexual harassment, especially harassment of women by men. Along with the Equity Act, a Code of Good Practice on the handling of sexual harassment cases was issued in 1998 to provide employers with guidelines and appropriate procedures to deal with and prevent this problem in the workplace.

What is sexual harassment?

Sexual harassment can be described as the unwanted and unwelcome physical, verbal or non-verbal conduct of a sexual nature that happens in the workplace.  Sexual attention becomes sexual harassment where the recipient has made it clear that the behaviour is considered offensive and/or the perpetrator should have known that the behaviour is unacceptable but the behaviour continues. However, a single incident of harassment can constitute sexual harassment. The following are examples of sexual harassment:

Physical conduct including:
• Touching
• Sexual assault and rape
• A strip search by or in the presence of the opposite sex

Verbal conduct including:
• Innuendoes, suggestions and hints (of a unwelcome nature)
• Sexual advances
• Comments with sexual overtones
• Sex-related jokes or insults or enquires about a person’s sex life
• Graphic comments about a persons body
• Whistling at a person or group of persons.

Non-verbal conduct including:
• Unwelcome and obscene gestures
• Indecent exposure
• The unwelcome display of sexual explicit pictures and objects.

Where an employer or person in a position of power forces you to give into their sexual advances or forces you to do sexual favours in return for an increase or promotion or where you do it because you fear losing a job related benefit, you are being sexually harassed.  It’s the same with sexual favouritism – this is where an authority figure awards only those who respond to his/her sexual advances.  These forms of harassment will always constitute discrimination.

Sometimes a fellow employee creates a hostile or negative working environment in which you find it difficult to work which can also be a type of sexual harassment. This abusive working environment can be created by means of jokes, offensive sexual innuendoes or by placing pornographic pictures on office walls.

Determining whether a hostile working environment was indeed created is sometimes a difficult call to make, because more sensitive employees may experience a certain picture on a wall in the workplace as being offensive, whereas others may not take offense.  Men and women often feel different about what constitutes a hostile working environment.

From whose point of view should the conduct be looked at?

How can we determine if someone’s behaviour or conduct really amounts to sexual harassment?  It would be unwise to rely exclusively on the victim’s point of view, as the victim may be over-sensitive.  If you only look at the situation through the eyes of the victim you would have to always take the victim’s word and that will cast the net of harassment too wide.

On the other hand, to rely purely on the circumstances of the case and the values of society and whether the perpetrator foresaw or should have foreseen that his conduct would constitute sexual harassment would also be too narrow.

The best option is to reach a compromise between the two viewpoints. The experiences of the victim must be taken into account, but also the surrounding circumstances and fault on the part of the perpetrator.  This means that the employee and the employee’s conduct also get placed under scrutiny.  No single factor alone will be decisive, and all the factors surrounding the incident will be considered.

What are your remedies?

1.  Internal procedures – solving the problem at work

When a co-worker harasses you, the first step would be to bring the issue under the attention of management, in order for them to take action and solve the problem.  According to the Code of Good Conduct employers should develop clear procedures to deal with sexual harassment in a sensitive and effective way.  When you report the problem there is a duty on Management to take disciplinary action against persons who do not comply with the Code of Conduct.  Allegations of sexual harassment must be dealt with seriously and confidentially and management must protect you against victimization, false accusations and retaliation for lodging a grievance.

The employer has two options in dealing with the grievance – informally or formally.  It may be enough for the employee concerned to have an opportunity to explain to the person engaging in the unwanted conduct that their behaviour is unwelcome, offensive or makes them uncomfortable and interferes with their work.  If this informal method does not solve the problem (where the matter is rather severe or the conduct continues) it may be better to take the formal route, where a grievance is lodged and disciplinary action is taken against the perpetrator.  An employee may be dismissed for serious misconduct or repeated offences. Serious incidents of sexual harassment or continued harassment after warnings are dismissible offences.

2.  Referring the matter to the CCMA and/or Labour Court

If you feel that your employer does not satisfactorily resolve the complaint, you can refer the matter within 30 days of the dispute having arisen, to the CCMA for conciliation.  Should the dispute remain unresolved at the CCMA, you can refer the matter to the Labour Court whose decision is binding on both parties.

Often victims of sexual harassment suffer in silence and would rather resign than bring the matter to the employer’s attention.  Especially when the employer is the one doing the harassing! The employee who resigned may decide to take the matter to the CCMA and argue that there was a constructive dismissal, in other words the employer made continued employment intolerable. If the employee can show that the harassment was the reason for the constructive dismissal, the employer’s conduct may be seen as an automatically unfair dismissal.

As there is a duty on employers to take action where a case of sexual harassment is brought under their attention, an employer can be held liable for discrimination where the employer was made aware of the conduct and then did nothing, or did not do everything that could be expected of a reasonable employer.

3.  Criminal and Civil charges

A victim of sexual assault has the right to press separate criminal and or civil charges against a perpetrator. The victim of may lay a charge in respect of a crime committed against the person, or the crime of crimen injuria.  A civil action on the grounds of injuria can also be instituted, where you claim a sum of money as compensation for the pain and suffering you experienced due to the perpetrator’s behaviour.  Where the employer neglected his duty in terms of the Good Conduct Code (to try and solve the matter internally) an injuria action can also be instituted against him.

By Adv. Carien du Toit for Her Law

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