Source: HER LAW – Making the law work for you by M. Nagtegaal
Sexual harassment in the workplace is a very serious offence. It can be a career-wrecker, but the sad thing is that it’s also an offence that gets overlooked easily. In many cases it boils down to a ‘he said … she said’ battle, and if the perpetrator’s higher up in the ranks, the victim often gets scared and doesn’t continue with the case.
What, exactly, is sexual harassment? Does it, for instance, count if your boss slaps your bum when you walk past him, or what if one of your fellow employees whistles at you if you pass him and his buddies at the cafeteria? Does it only count as sexual harassment if somebody actually touches you inappropriately, or do sexual innuendos count?
We’ll try to unravel these questions in this chapter. The most important thing is always to trust your instincts as a woman: if you feel uneasy about something that has happened or is happening, talk about it. Make yourself heard. Tell that slime-sucking snail to stop whatever it is that he’s doing to make your life uncomfortable or miserable. You have rights: use them.
In terms of our Constitution everyone’s equal before the law, and therefore has the right to equal protection and benefit of the law, and to enjoy all rights and freedoms equally. No person may unfairly discriminate against you or anyone else on the basis of 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.
Sexual harassment and the law
The Employment Equity Act of 1998 states that all employees have the right to fair treatment, and no one, neither a fellow employee nor your employer, has the right to discriminate unfairly against you. The Act places a duty on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination.
So if a colleague is sexually harassing you, and you bring this to your employer’s attention, the employer must consult all the relevant people and do what is necessary to eliminate the conduct. If employers fail to take these steps and harassment can be proved, they will also be held liable, unless they can show that they did all that was reasonably practicable to follow the Act. In short, employers can get into serious trouble for doing nothing to stop harassment.
Repeat after us: 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.
Your job should never depend on how far you’ll go to please a fellow employee or boss. Your capabilities should be judged on what’s between your ears, not your legs.
Sexual harassment is the most common form of harassment by far in the workplace, especially harassment of women by men. Along with the Equity Act, a Code of Good Practice dealing with the handling of sexual harassment cases was issued by the government in 1998 to provide employers with guidelines and appropriate procedures for dealing with and preventing this problem in the workplace.
The definition of sexual harassment
Officially, sexual harassment is 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 when you’ve made it clear that you consider the behaviour offensive, and/or the person who’s doing it should have known that the behaviour is unacceptable, but it continues.
Note that a single incident of harassment can constitute sexual harassment. Once is enough to make a case; it doesn’t have to happen repeatedly.
Types of sexual harassment
Physical sexual harassment includes a wide range, for example
§ sexual assault and rape
§ a strip search by or in the presence of the opposite sex.
Verbal sexual harassment includes
§ innuendoes, suggestions, and hints (of an unwelcome nature)
§ sexual advances
§ comments with sexual overtones
§ sex-related jokes or insults or enquiries about a person’s sex life
§ graphic comments about a person’s body
§ whistling at a person or group of people.
Non-verbal sexual harassment includes
§ unwelcome and obscene gestures
§ indecent exposure
§ the unwelcome display of sexually explicit pictures and objects.
Abuse by a person in authority
When an employer or person in a position of power puts pressure on you to give in to their sexual advances or to give sexual favours in return for an increase or promotion, or if you do it because you fear losing a job-related benefit, you’re being sexually harassed. It’s the same with sexual favouritism; this is when an authority figure awards only those who respond to his or her sexual advances. These forms of harassment always constitute discrimination and are therefore illegal.
The hostile working environment
Sometimes a fellow employee creates a hostile or negative working environment in which you find it difficult to work, and which can also be a type of sexual harassment. This abusive 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 has indeed been created is sometimes a difficult call to make, because more sensitive or conservative employees may find a certain picture on a wall in the workplace offensive, whereas another might see it as art and not take offence. Men and women often feel differently about what constitutes a hostile working environment. Once again, if your gut tells you that something is wrong, speak out about it. You may be surprised by how many other people feel the same way as you do.
A fair hearing: both sides of the story
As with most things in life, one has to look at the situation from all angles. Both the victim and the perpetrator should have a fair hearing.
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 he or she may be over-sensitive, or very conservative, or perhaps even malicious. If you only looked at the situation through the eyes of the victim, you’d always have to take the victim’s word, and that would 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 the conduct would constitute sexual harassment would also be too narrow.
Usually 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 employer and the employee’s conduct also get placed under scrutiny. No single factor alone will be decisive, and all the factors surrounding the incident must be considered.
What to do if you’re being harassed
Here are routes that we recommend you follow if you’re being sexually harassed.
INTERNAL PROCEDURES: SOLVING THE PROBLEM AT WORK
When a co-worker harasses you and you’ve made it clear that the behaviour is unwelcome, the first step is to bring the issue to the attention of management, in order for them to take action and address the problem.
According to the Code of Good Conduct, employers should develop clear procedures for dealing with sexual harassment in a sensitive and effective way. When you report the problem there is a duty on the management to take disciplinary action against people who don’t comply with the Code. 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 can deal with the grievance informally or formally. It may be enough for the aggrieved employee to have an opportunity to explain to the person engaging in the unwanted conduct (the harasser) that their behaviour is unwelcome, offensive, or makes others uncomfortable and interferes with their work. If this informal method doesn’t solve the problem (for example, where the conduct is extreme or it continues) it may be better to take the formal route, through which a grievance is lodged and disciplinary action is taken against the perpetrator. Serious incidents of sexual harassment or continued harassment after warnings are dismissible offences.
GOING TO THE CCMA AND/OR LABOUR COURT
If you feel that your employer doesn’t satisfactorily resolve the complaint, you can refer the matter within 30 days of the dispute having arisen to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If the dispute remains unresolved at the CCMA, you can refer it to the Labour Court, whose decision will be binding on both parties.
Often victims of sexual harassment suffer in silence and would rather resign that bring the matter to the employer’s attention. This is especially so when the employer is the one doing the harassing! An employee who resigns 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 having caused an automatically unfair dismissal.
As there’s a duty on employers to take action when a case of sexual harassment is brought to their attention, an employer can be held liable for discrimination if he or she was made aware of the conduct and then did nothing, or did not do everything that could be expected of a reasonable employer.
CRIMINAL AND CIVIL CHARGES
A victim of sexual assault has the right to press separate criminal and/or civil charges against a perpetrator (in addition to the action that must be taken in the workplace). The victim may lay a charge for a crime committed against his or her personal rights, or the crime of crimen injuria.
In a civil action on the grounds of crimen injuria, you claim a sum of money as the perpetrator’s behaviour caused you harm. Where the employer has neglected his or her duty to try to solve the matter internally, an injuria action can also be instituted against him.