What The Law Says: Sexual Harassment in the Workplace

What The Law Says: Sexual Harassment in the Workplace

The notion of a corporate workplace has altered dramatically in recent years and currently there are more women to be found in roles that were formerly inhabited solely by men. Unfortunately this has given birth to the problem of sexual harassment in the workplace. In this post we concentrate on what sexual harassment is and what someone may do if they are being exposed to it.

Both men and women may be victims of sexual harassment; however, it is more frequent for this form of harassment to be aimed against women in the workplace. According to Section 6(3) of the Employment Equity Act (EEA) harassment of an employee is a form of unfair discrimination and is forbidden 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:

  • Whether the harassment is on the banned grounds of sex and/or gender and/or sexual orientation;
  • Whether the sexual activity was unwanted;
  • The type and extent of the sexual behaviour; and
  • The effect of the sexual conduct on the employee.

There are three categories of behaviour that might constitute sexual harassment:

  • Physical conduct such as touching;
  • Verbal conduct such as innuendos; and 
  • Non-verbal conduct such as giving another person sexually graphic photos.

Certain sorts of sexual harassment are frequent in the workplace. One such sort is quid pro quo harassment, which is when someone is compelled to give in to sexual advances to prevent losing their employment or a work related perk. Another form is sexual favouritism when only those who succumb to sexual approaches may succeed or obtain perks in the workplace. There is also sexual victimisation, when persons who do not succumb to sexual approaches are biased. Lastly we have the case when jokes, photos or innuendos generate a hostile working atmosphere which need not be aimed towards one individual employee.

According to Item 8 of the Code there is a duty on employers to adopt clear processes to deal with sexual harassment, which should allow the settlement of issues in a sensitive, efficient and effective manner. Section 60(1) of the EEA specifies that behaviour in noncompliance with its terms shall promptly be brought to the notice of the employer. This implies as quickly as is practically practicable in the circumstances and without excessive delay, taking into consideration the sensitive nature of sexual harassment, that the complainant may fear reprisals and the relative positions of the complainant and the accused perpetrator in the workplace. The victim of the sexual harassment need not be the one to bring it to the notice of the employer; any other person who is aware of the sexual harassment may also do so.

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 employers policy, and take all the necessary steps, which are set out in Item 8.3 of the Code, to eliminate the sexual harassment.

A complainant or another person may opt to pursue an informal method, the first of which is to convey to the perpetrator that the behaviour in issue is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her job. 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.

If a complainant does not find the abovementioned satisfactory then he or she can follow the formal procedure set out in an employers 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.

If the complainant is still not satisfied with the findings a complaint of sexual harassment may be forwarded to the Commission for Conciliation, Mediation and Arbitration (CCMA) (CCMA). It is crucial to emphasise here that it is a disciplinary crime to victimise or retaliate against a complainant who in good faith registers a grievance of sexual harassment.