What The Law Says: Sexual Harassment In The Workplace

What The Law Says: Sexual Harassment In The Workplace

It is estimated that one in four women will experience sexual harassment within the life span of their careers. “[A] truth [that] rings as loudly today as it did […]” in 1989, when the Industrial Court, now the Labour Court, reporting on its first  reported case of sexual harassment, confirmed how bad this type of misconduct is, clearly “sounding the alarm that sexual harassment [should not] be tolerated”. Since then the Constitution itself has reinforced the need for laws to be put in place to protect people against sexual harassment and promote equality and dignity in the workplace. But for as long sexual harassment persists and is not treated with the seriousness it deserves, the Constitution’s promises remain nothing more than ideals on paper [1].

In this article we look at what the law says about sexual harassment and what you can do as an employer to ensure that you are not only compliant, but also actively taking steps to eliminate all forms of sexual harassment in your business. 

Although harassment is not specifically defined in the Employment Equity Act (EEA) 55 of 1998, the Act does oblige employers to take steps to promote equal opportunities in the workplace. It recognizes, together with the updated Code of Good Practice on the Prevention and Elimination on Harassment in the Workplace (The Code), that harassment is a form of unfair discrimination, amounting to an abuse of power, preventing equity and equality in the workplace and must be eliminated [2].  

So, what is Sexual Harassment?

Given the statistics of sexual harassment, which are likely underestimated because many women don’t report sexual harassment out fear of losing their jobs or because they know nothing will come of it, it’s important to understand what conduct would constitute sexual harassment and how allegations of sexual harassment should be dealt with in the workplace. 

In simple terms sexual harassment is a form of unfair discrimination on grounds of a person’s sex, gender or sexual orientation which infringes on the rights of the victim and constitutes a barrier to equity and equality in the workplace. 

Sexual harassment is defined as any unwelcome sexual conduct or unwanted pressure involving an employee’s sexuality, which interferes with their work performance or creates a barrier to equity in the workplace[4]. This includes direct or indirect, physical, verbal and non verbal conduct, or social media postings. Conduct can range from unwelcome kissing, touching, inappropriate strip searching, telling unwelcome sex-related jokes, asking an employee to wear sexy clothes, showing pornographic pictures on a personal computer, repeated unwanted social invitations to dinner or drinks, requests for sexual favours, and sexual comments and pictures posted on Facebook or other socia media sites without a person’s consent [5]. The Code provides a list of the types of actions that would be regarded as types of sexual harassment. 

Sexual harassment is conduct with a sexual theme that may offend an employee, make them uncomfortable, create a toxic work environment,  cause harm or convince an employee they will be harmed, either physically or through disciplinary action if they  reject this type of conduct [6]. 

The Code clearly indicates what factors must be taken into account by an employer in determining whether there has been an act of sexual harassment. For example, was the harassment and discrimination based on sex, gender or sexual orientation? Was it direct or indirect,  using words or body language? Was the sexual conduct unwanted and should the perpetrator have known that it could be unwelcome[7]?  In all cases, the intention of the perpetrator is irrelevant [8]. It is the nature, extent and impact of the sexual conduct that must be considered with the same consequences even where the perpetrator and employee are of  the same sex [9]. 

So this means that even where good, old, loyal senior manager John innocently compliments Andiswa, a young female colleague, on the snug fit of her sweater and taps her on her backside to reinforce the compliment, it would amount to sexual harassment. And it would be the same if it was good, old, loyal senior manager Susan who was the same sex as the victim.   

What do you need to do as an employer?

In terms of section 60 of the EEA, you have an obligation to take preventative and remedial steps to prevent sexual harassment. This includes assessing the risk of harassment that your employees may be exposed to when they are performing their duties. The Code requires you to adopt a zero tolerance toward harassment and to create a work environment where employees who raise harassment issues or complaints are not scared of retaliation like losing their job or an opportunity for promotion. Or where they don’t feel they are just being ignored [10]. 

Your starting point is your company harassment policy, a legal requirement to have in place. This should be clearly communicated to all employees, and should comply with provisions of the Code, at the very least making the following statements [11]: 

  • Harassment will not be tolerated
  • Harassment on a prohibited ground will constitute unfair discrimination 
  • Grievances regarding harassment will be investigated and handled in a confidential manner 
  • It will be considered a disciplinary offense where an employee who, in good faith, lodges a grievance, is victimized or punished for doing this
  • A clear procedure will be in place for a complainant to follow where they believe they have been sexually harassed, and for the employer to follow when dealing  with the complaint, and 
  • Counseling, treatment, care and support will be available to employees if they need this[12]

Okay, let’s look at this in more detail

Although the EEA provides that sexual harassment should immediately be brought to your attention as an employer, the Code recognizes that fear of being victimised, and the presence and superiority of the perpetrator are factors that may prevent an employee reporting sexual harassment[13]. So even though it is ideal for sexual harassment to be reported as soon as possible, a delay in reporting it will not affect the victim’s rights to take the matter further. 

The employee can report the harassment complaint to you directly or a trade union representative,   friend or colleague can report the incident if the employee is not comfortable personally doing this[15]. 

If an employee has reported alleged harassment, your first step is to consult all relevant parties, and then to follow the procedures in your harassment policy to address the complaint and to prevent it from happening again. 

It is important to note that if you don’t take adequate steps to eliminate the harassment after an allegation has been raised by an employee, as the employer, you can be held liable for the conduct of your employee (the perpetrator) in terms of section 60 of the EEA[16]. Going back to our case-study, Khuselo, who is John and Andiswa’s employer, is very busy and doesn’t deal with the complaint laid by Andiswa against John. He leaves it because he thinks Andiswa took too long to report the matter so it clearly wasn’t important enough for him to follow up. Khuselo also heard rumours that John and Andiswa were in a previously consenting sexual relationship, so he thinks this complaint is just a case of a relationship gone wrong. When another complaint of sexual harassment is laid against John it is clear that Khusela has not taken the necessary steps to investigate, resolve and prevent the same thing happening. Based on this, Khuselo can be held liable in a civil court for damages for John’s conduct even though he himself didn’t act in any improper way.  

If an employee reports an allegation of sexual harassment, you need to inform them of the informal and  formal procedures available to them, explain what each procedure involves and confirm that the employee can choose which procedure to follow. You need to make it clear to the employee that there will be no negative consequences as a result of reporting the complaint [17] and that the matter will be dealt with confidentially [18]. 

You also need to offer appropriate advice, guidance and counseling to the employee. This includes during any disciplinary hearing of the perpetrator that may take place later. In this way you are making sure you are being fair, both substantively and procedurally.

What is the difference between informal and formal procedures and which is better?  

Informal procedures involve mediation between the parties where the parties can either meet together or separately depending on whether the complainant is comfortable with this, to try and resolve the issue without going the formal route. The perpetrator will be informed of the allegation and that it was unwelcome, that it is related to a prohibited ground, that it was offensive, and influenced the person’s ability to work [19]. The perpetrator is then given an opportunity to respond. The process can be finalised if both parties are satisfied with the outcome. But if there is no agreement, then the complaint will have to be dealt with using formal procedures. 

In contrast to the informal procedure, the formal procedure for reporting sexual harassment requires the grievance to be formally lodged according to your company disciplinary procedures and from there you will have to follow the disciplinary steps prescribed in your policy. This will include the possibility of a disciplinary hearing, and/or referral to the CCMA if the employee is unhappy with the outcome [20]. 

Remember that even where an employee chooses to use the informal process, as the employer you are  still obliged to assess the risk to other employees [21] of repeated sexual harassment by the perpetrator.  This means taking into account the seriousness of the level of sexual harassment and the history of the perpetrator. If you think there is a risk to other employees, you have to follow the formal procedure regardless of what the complainant wants [22].  

So, going back to our case study, Andiswa has reported the complaint to Khuselo, her employer, and she has asked to use the informal process to deal with the complaint. Khuselo convenes a meeting with both parties, but Andiswa says she doesn’t want to meet John face to face.  Khuselo agrees to this and meets with the parties separately, explaining to John that his comments to Andiswa were unwelcome and offensive. After a couple of individual sessions, John acknowledges that his comments and behaviour were unacceptable, but says this is how he always spoke to people in the ‘old days’. He agrees his behaviour is not acceptable and he will apologise to Andiswa and in addition will go for some awareness and diversity training. Andiswa accepts this and the matter is resolved. 

In the meantime Khuselo has done some investigating which shows that  ‘good, old, loyal’ John is actually a little perverted with previous reports of sexual harassment and some far more serious than the current one. This is a risk to other employees and Khuselo decides to follow formal disciplinary procedures to handle the harassment even though Andiswa has insisted on following the informal process. This would be appropriate given what he has discovered about John and would be an important step in mitigating the risk for other employees.

Lastly……

Apart from describing the formal and informal procedures that you must follow in dealing with sexual harassment cases, your harassment policy must also describe the types of disciplinary sanctions for anyone found guilty of sexual harassment. This could be warnings for minor cases, to dismissal where these minor cases are repeated or where the harassment is very serious, or it could be transferring a person to another department or branch. Your policy should also make it clear that  employees have the right to lay a criminal charge or start private legal action against the perpetrator if they prefer to do this[23].

In light of women’s month and in recognition of the strength of women and their right to equity and equality promised by our Constitution, remember the one in four women who are subjected to sexual harassment in some form during their careers. This could be your wife, sister or daughter. So it is up to each and every South African to stand together in the fight against violence, discrimination and inequitable treatment of women. Ensure your harassment policies are compliant and in line with South Africa’s labour laws. Don’t ignore sexual harassment when it is raised in your workplace. Adopt a zero tolerance approach so that everyone understands you are serious and you wont tolerate this behaviour. No matter how big or small your business, everyone has a role to play in making our workplaces ‘no go’ zones for  sexual harassment.  

  • [2] Clause 3.4  Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 8) (last assessed 08/08/22) 
  • [3] Clause 5.2.5 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 15) 
  • [4] Clause 5.1  Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 14) 
  • [5] Clause 5.2.5.1 – 5.2.5.7 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 15 – 16)
  • [6] Clause 4.1 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf   (Page 9) 
  • [7] Clause 5.3.1 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 16) 
  • [8] Clause 5.2.2 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf   (Page 15) 
  • [9] Clause 5.1 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf   (Page 14) 
  • [11] Clause 9.2 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 23) and Clause 9.4  Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 23) and Clause 9.4.1 – Clause 9.4.6 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 24) 
  • [12] Clause 9.6 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 24) 
  • [13] Clause 10.1.3 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 25) 
  • [14] Clause 10.1.2 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 24) 
  • [15] Clause 10.1.4 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 25) 
  • [16] Clause 10.2  Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 25 ) Clause 10.3 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf   (Page 25) 
  • [17] clause 10.4 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 26) 
  • Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  [19]  Clause 10.7 (Page 27) 
  • [20]Clause 10.8 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf   (Page 27) 
  • [21] Clause 10.8.2  Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 28) 
  • [22]Clause 10.8.2 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 28) 
  • [23] Clause 10.9 Code of Good Practice on the Prevention and elimination of Harassment in the Workplace (18 March 2022) accessible at  chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gov.za/sites/default/files/gcis_document/202203/46056reg11409gon1890.pdf  (Page 29)