The popular #MeToo campaign went viral globally and shined a spotlight on sexual harassment but more so in the workplace.

The hashtag was adopted and retweeted and circulated by a number of South Africans on social media. It is important to understand what protection the law provides, the responsibilities of the Employer and options available for Victims. How does legislation address the problem of sexual harassment?

Section 6 of the Employment Equity Act, 55 of 1998 (“the Act“) states that no person may unfairly discriminate against another and that “harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination”. The Act requires that all Employers must take steps to eliminate unfair discrimination in any Employment Policy or Practice.

The Act also sets out further practical details on the handling of sexual harassment cases, primarily through the Code of Good Practice on the Handling of Sexual Harassment (“the Code”), issued under the Act. In terms of the Code sexual harassment is defined as the unwanted conduct of a sexual nature. Sexual attention becomes sexual harassment where:

• The behaviour is persistent, although a single incident of harassment can constitute sexual harassment;
• the Recipient has made it clear that the behaviour is considered offensive and/or
• the Perpetrator should have known that the behaviour is regarded as unacceptable. The Code also gives guidelines as to what type of conduct will be considered sexual harassment. These are:
  • Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex;
  • verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or to them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling at a person or group of persons;
  • non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects;
  • quid pro quo harassment which takes place when an Owner, Employer, Supervisor, Member of Management or Co-Employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an Employee or job applicant in exchange for sexual favours.

An Employer is obliged to take proactive and reactive steps to eliminate harassment in the workplace. Failure to do so may result in the employer being required to pay the employee subjected to harassment compensation.

Employers should adopt a sexual harassment policy which is in line with the Code of Good Practice on the Handling of Sexual Harassment, which should be effectively communicated to all Employees. The policy must provide for clear procedures to deal with sexual harassment which enable the resolution of problems in an efficient, effective and sensitive way.

Harassment triggers the following obligations in terms of Section 60 of the Act:

• The conduct must be bought to the attention of the Employer immediately;
• the Employer must consult all relevant parties and take necessary steps to eliminate harassment and comply with the provisions of the Act;
• if the Employer fails to take the necessary steps and it is proved that the Employee has breached the relevant provisions of the Act, the Employer must be deemed to have also breached the provisions of the Act;
• an Employer is not liable for the conduct of the Employee if the Employer is able to prove that it did all that was reasonably practicable to ensure that the Employee would not act in breach of the Act.

Conclusion

An Employee who finds themselves a victim of sexual harassment may lodge a formal grievance and it will be dealt with in terms of the Employers’ Sexual Harassment Policy. This will often lead to a Formal Investigation and Disciplinary Hearing. An Employee may also refer a sexual harassment dispute to the CCMA, Bargaining Councils or the Labour Courts. Finally, a victim of sexual harassment has the right to press separate criminal charges against the alleged perpetrator. For assistance in creating Sexual Harassment Policies and dealing with disputes, contact SchoemanLaw Inc.

Written by Sixolile Timothy SchoemanLaw