16 Days of Activism against Gender-Based Violence is an international campaign that raises awareness and mobilises advocacy to combat violence against women and children. In South Africa, research estimates up to 50% of women will experience some form of sexual violence during their lifetime. It is for this purpose that we unpack how sexual harassment in the workplace promotes a culture of gender-based violence that dictates the lived experiences of women and men, both at work and in society generally. Sexual harassment is rife in the workplace and is known as egregious conduct

Currently, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022 Code) is the code governing sexual harassment in the workplace. A key element in determining whether the conduct amounts to sexual harassment is for the conduct to be "unwanted".

Understanding the test for unwanted conduct in assessing cases of alleged sexual harassment will aid employers in raising awareness and improving accountability in the drive to end gender-based violence in the workplace.

Sexual harassment in the workplace defined

Sexual harassment in the workplace is defined as "unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome". The unwelcome element of the of sexual harassment definition is often conspicuous; however, circumstances may arise where its determination becomes obscure, with the effect that employers may be left grappling with how best to deal with such conduct. In navigating such sensitive terrain, an employer ought to have a sound understanding of the regulatory framework.

The objective test to determine unwanted conduct 

In 1998, the National Economic Development and Labour Council issued the Code of Good Practice on the Handling of Sexual Harassment Cases (NEDLAC Code). The NEDLAC Code defined sexual harassment as "unwanted conduct of a sexual nature". Sexual conduct would be considered "unwanted" if "the recipient had made it clear that the behaviour was offensive; and/or if the perpetrator should have known that the behaviour is regarded as unacceptable".

It has been argued that the NEDLAC Code endorsed an objective approach to the unwanted element of the test for sexual harassment. In this regard, the objective approach aims to assess whether a reasonable person in the position of the alleged perpetrator knows or ought to have known that sexual conduct was unwelcome.

The subjective test to determine unwanted conduct  

Seven years after the NEDLAC Code was issued, the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases (2005 Code) was promulgated. The 2005 Code defined sexual harassment as "unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace". The 2005 Code appeared to endorse a more subjective approach in the determination of the "unwelcome" element of the test, in its consideration of the nature and extent of the sexual conduct, as well as the impact of sexual conduct on the complainant. To put it succinctly, the subjective test aimed at determining whether the victim of alleged sexual harassment, in their view, either openly or implicitly, conveyed that the alleged action was undesirable.

The objective and subjective approaches to determine if sexual conduct was unwelcome have continuously been at odds with each other and there has been no consistency in our court's approach into the determination/assessment of the unwelcome element of sexual harassment.

In Bandat v De Kock and Another, it was held that "what is clear from … the Code is that central to the existence of sexual harassment is conduct that must be ‘unwelcome’. If the conduct is not unwelcome, it cannot be sexual harassment. The determination of whether conduct is ‘unwelcome’ is an objective one, because conduct that may be subjectively unwelcome to one person may not be unwelcome to another".

The objective test has, however, been criticised for espousing historically male-dominated standards for objectively welcomed behaviour. This, it is argued, could further foster workplace cultures which perpetuate gender inequalities.

In Motsamai v Everite Building Products (Pty) Ltd the Labour Appeal Court (LAC) held a different view and endorsed a subjective rendition of the test. The LAC held that "sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim: how does he/she perceive it, and whether or not the perception is reasonable".

Like the objective version of the test, the subjective approach has its inadequacies, in that it has been said that the subjective judgment of hypersensitive individuals may render conduct as sexual harassment that would not typically be recognised as such by societal standards.

The combination of objective and subjective tests to determine unwanted conduct 

For the first time, the 2022 Code addresses that an enquiry into sexual harassment should encompass both objective and subjective elements. The 2022 Code provides its own formulation for the sexual harassment test, and the below factors should be considered:

• whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
• whether the sexual conduct was unwanted or unacceptable;
• the nature and extent of the sexual conduct; and
• the impact of the sexual conduct on the employee.

According to the 2022 Code, whether or not conduct constitutes harassment, should be assessed on an objective basis from the perspective of the employee who alleges harassment.

The primary focus of the inquiry as to whether there has been harassment is on the impact of the conduct on the employee. However, there may be circumstances in which the perceptions of the person harassed are not consistent with the views of a 'reasonable person' in the situation of the complainant. In such circumstances, a person or employer charged with harassment may seek to establish that the complainant's perceptions are not consistent with societal values reflective of our constitutional ethos.

In considering the unwelcome element of the test, one must determine whether the impugned conduct was demonstrably unwanted or alternatively unacceptable. This formulation of the test is an amalgamation of an objective and subjective test. Accordingly, conduct may be considered unwelcome if, the harassed individual either expressly, tacitly, directly, or indirectly expressed that it was unwelcome or, absent such an expression if the conduct was such that a reasonable person in the same circumstances would have perceived it as unacceptable.  In this regard, the fact that the complainant does not indicate that the conduct is unwanted does not necessarily mean that there has not been sexual harassment if the perpetrator ought to have known the conduct could be regarded as unwanted.

While there is limited guidance from our courts on the application of the 2022 Code, the LAC in Amathole District Municipality v CCMA and Others considered its provisions. In doing so, the LAC stated that "[t]he test as to whether or not the conduct is unwelcome, is objective". This notwithstanding, while the LAC states that an objective test is to be applied, it appears from an analysis of the judgment that subjective elements were also considered in arriving at its decision. We, therefore, caution employers against adopting a purely objective approach in determining if the conduct was unwanted in cases of alleged sexual harassment, in circumstances where the 2022 Code, as indicated above, envisages a test that comprises both objective and subjective elements.

Importantly, the 2022 Code provides that it is not necessary to establish the intention or state of mind of the perpetrator to prove harassment for the purposes of the Employment Equity Act.

The test for "unwelcome" conduct introduced by the 2022 Code aims to bring about a balanced assessment when determining whether impugned conduct constitutes sexual harassment. Understanding the test for unwanted conduct in assessing cases of alleged sexual harassment is essential for employers in the drive to end gender-based violence in the workplace.

Written by Mehnaaz Bux, Partner, Dumisani Ndiweni, Senior Associate, Jenna Atkinson, Associate & Kgolagano Legobye, Candidate Attorney at Webber Wentzel