Sexual Harassment in the Workplace

Equity legislation in South Africa outlaws’ sexual harassment from taking place or having to be tolerated. What does the law say is sexual harassment? It is defined as unwanted conduct of a sexual nature which has a negative or detrimental effect on the recipient or victim.

Behaviour constituting sexual harassment includes inappropriate gestures, jokes or degrading or lewd remarks, hints or suggestions, innuendo to fondling or indecently touching a person without consent. 

It is not only physical conduct that may constitute sexual harassment, unwelcome non-verbal conduct of a sexual nature may also constitute sexual harassment. 

Sexual harassment may consist of a single incident of harassment or where a pattern of the behaviour develops. Where and when incidents of such nature occur, the recipient would ordinarily indicate that such conduct is unwelcome and or unacceptable

Where a perpetrator persists in such conduct not withstanding a negative response from the recipient/ victim, sexual harassment would be clearly established. How does one identify sexual harassment?    There is a Code of Good Practice on the Handling of Sexual Harassment Cases issued in terms of applicable Labour Legislation. The Code distinguishes between the type of conduct involved, and the effect it has on the victim. 

Sexual harassment according to the Code can be physical conduct, verbal conduct or non-verbal conduct. There are three types of effects sexual harassment may have. 

Quid Pro quo harassment occurs where an employee is “blackmailed” into sexual advances against his/her will for fear of losing a job related benefit such as a promotion, salary increase, or bonus.

Hostile working environment harassment is where an offensive or hostile environment is created through jokes, sexual innuendos, and related remarks that are offensive to a recipient and resulting in a violation of her/his dignity. It can also take the form of pornographic material depicting nude women being displayed in a workplace. 

Sexual favouritism is where employers who respond to the sexual overtures of a perpetrator are rewarded in one way or another in the workplace. 

Sexual harassment is regarded as a form of unfair discrimination in terms of Labour Law. This means that a victim has an unfair discrimination claim against a perpetrator and /or her/his employer. A perpetrator of a sexual harassment may also be dismissed from employment based on misconduct.  

Labour legislation affords employees the right to work in an environment free from discriminatory intimidation, ridicule, insult or demeaning conduct. 

What should an employee do when faced with sexual harassment? Whether or not that employer has a Sexual Harassment Policy or not, an employee should raise a complaint to management concerning the issue. A formal written grievance should be furnished to management detailing the conduct complained of. Care should be taken to record the incident/s accurately and comprehensively. 

The complaint may then be investigated by the employer and appropriate remedial steps may be taken to protect the complainant from further acts of harassment. 

Arising from the investigation the company may decide to take disciplinary steps against the perpetrator. The complainant will be a key witness in any disciplinary inquiry that may follow. 

Where the employer ignores the employees’ complaint or fails and/ or refuses to take appropriate steps to protect the employee or to properly investigate the matter, and depending on the seriousness of the matter, an employee may lodge a claim for damages against both the employer and employee concerned. An employee may, in an appropriate case, elect to resign from employment and claim unfair dismissal based on the employer making continued employment intolerable. 

It is advisable that an employee obtain advice and guidance from a trade union, or any suitable legal advice centre or labour lawyer, before embarking on any further legal steps.