SEXUAL HARASSMENT IN THE WORK PLACE

A young 20 year old, personal assistant, Roxanne hates going to work. Her immediate supervisor constantly makes lewd remarks about her body and suggests to her the possibility of having a sexual relationship. Whenever she is at the photocopying machine, he always comes into the room and gawks up her skirt and whistles at her. She is too scared to tell anyone as she does not want to lose her job. When one speaks about sexual harassment, it is often done in whispers and danger tactics are used to silence victims. Unfortunately most victims like Roxanne suffer in silence and often resign rather than bring the matter to the attention of their employer.

Fortunately, the South African Labour legislation has introduced steps to protect victims of sexual harassment. Sexual harassment is, in terms of Item 3 of the Code of Good Practice on the handling of sexual harassment defined as “unwanted conduct of a sexual nature”. The definition goes further to say that it must be persistent unwanted sexual conduct. However in limited circumstances, a single incident can qualify as sexual harassment. Since it is very difficult to actually prove the existence of sexual harassment, our courts have also attempted to define sexual harassment by looking at the effect of the harassment. The first type of sexual harassment is known as Quid Pro Quo harassment. This occurs when a man or woman is forced into performing sexual favours against his/her will out of fear of losing his/her job or benefit. Secondly, Sexual Favouritism, which occurs when an employer who is in a position of authority rewards only those who respond to his/her sexual advances. Thirdly, where a hostile and abusive working environment is created, e.g. pornographic pictures on the walls sexual jokes or sexual propositions.

What forms of behaviour constitute sexual harassment? In the example of the 20 year old personal assistant, Roxanne, we notice that most of the harassment constitutes verbal conduct. The innuendo, suggestions, sexual advances, sex related jokes, insults or graphic comments about a person’s body made to that person or in their presence or even whistling at a person falls under the section of verbal conduct as one type of behaviour that qualifies as sexual harassment. Appendix 3 of the Code of Good Practice on handling sexual harassment, lists two further types of conduct which constitute sexual harassment. Sexual harassment can also take the form of physical conduct. This type of behaviour would include touching, sexual assault, rape, strip search by or in the presence of the opposite sex. The next type of behaviour takes the form of non-verbal behaviour which includes gestures, indecent exposure or the display of sexually explicit pictures and objects.

The legislation, in particular Section 60 of the Employment Equity Act 55 of 1998 holds the employer responsible when the employer was made aware of the conduct and did nothing or did not do everything that is expected from a reasonable employer to stop any kind of sexual harassment. It must be borne in mind that Section 5 of the Employment Equity Act as well as Item 6 of the Code of Good Practice on handling of sexual harassment cases, places a positive duty on the employer to eliminate unfair discrimination which includes sexual harassment. The employer should have a policy regarding sexual harassment. In the case of JVM Ltd 1989 10 ILJ 755 (IC), the court held that the duty rests on employers to protect their employees from harassment by other employees and by customers.

However where victims have resorted to resignation, the legislation provides an alternative remedy. The victim may argue constructive dismissal, i.e. that the employer made the continued employment intolerable. In the case of Pretorius v Britz 1997 (5) BLLR 649 (CCMA), the commissioner held that the employer may be held to have constructively dismissed an employee if the employer fails to control such behaviour when it was aware of it. The issue of sexual harassment has yet not filtered into the workplace as a serious problem. I was very alarmed when I discovered some large corporations do not have any policy on sexual harassment. Many people continue to treat it as a joke. However the impact of the sexual harassment has devastating effects on victims. I would suggest that if you are an employer you must develop a sexual harassment policy. If you are an employee and have been sexually harassed you should inform your employer immediately and if your employer does nothing to protect you, take the matter to the CCMA or the Labour Court.

WRITTEN BY:
LESLEY RAMULIFHO
PETZER, DU TOIT & RAMULIFHO