SEXUAL HARASSMENT – NO IS NO!
By Lizel van Deventer
Gerrie Ebersöhn Attorneys
For more than three decades Harvey Weinstein, a famous director in Hollywood, sexually harassed female actresses and colleagues. As soon as the New York Times reported on his inexcusable and appalling conduct, female actresses started to come forward and started sharing their experiences about his sexual advances and inappropriate conduct. Weinstein’s career lies in shatters. Bill Cosby’s career and reputation suffered a similar fate.
It is an unfortunate fact that sexual harassment predominantly occurs in the workplace, where male employers or fellow male employees attempt (and all too often succeed) at taking advantage of female employees. Sexual harassment is however by no means limited to the harassment of woman, as in the past few years the number of male employees, gay employees and lesbian employees who have fallen victim to sexual harassment has seen a staggering increase.
Due to the stigma surrounding sexual harassment, most victims fail to report sexual harassment as they fear the possibility of victimization, losing their jobs, or simply hope that the sexual harasser will eventually lose interest and move on to his next victim. This “strategy” often implemented by victims as a method of coping with the sexual harassment is almost never effective as in many cases the acts of harassment simply continue and exacerbate, often resulting in the victim resigning, and the harasser simply continuing with his inexcusable conduct by moving on to the next victim.
The Labour Court has made it very clear that sexual harassment, just like racism, will not be tolerated, resulting in various pieces of legislation being promulgated by the legislature in order to protect employees from sexual harassment in the workplace. The number one way in which the legislature achieves this is by placing a duty on the employer to guarantee a safe working environment for its employees, which includes an environment free from sexual harassment.
What exactly is sexual harassment?
Generally speaking, any unwanted conduct of a sexual nature. Usually, sexual harassment manifests in form of physical conduct, but can also be verbal by for instance making lewd / sexual jokes, or gestures of a sexual nature. The law dictates that even a single sexual act, such as stroking another employee’s thigh or touching a fellow employee’s breast may be sufficient to constitute sexual harassment.
Any conduct will be classified as unwanted as soon as the victim makes it clear to the harasser that he / she find the conduct offensive. In addition to the aforementioned, the conduct of the harasser will be viewed as unwanted if the harasser should have known that such behaviour is generally regarded as unwanted.
The Labour Court held that sexual harassment includes an employer who promises a promotion to his female secretary in return for sex; an employee who puts his hand on his fellow employee’s leg; a male employee who goes on a business trip with a fellow female employee, and at dinner (whilst on the business trip) proposes that she spends the night with him; a male employee who tells his fellow female employee that he wants to spank her; a male employee (or male employer) asking a female employee about her sex life. Even cat calling (“wolwe fluit”) is considered sexual harassment.
Rule of thumb
Sexual harassment can be easily identified by asking the following question: would an employee or employer still have said something or done something if the employee (at which the unwanted conduct was directed), was a person of the same sex / not part of the sex that the harasser is attracted to? If the answer is “no”, then the conduct will in all probability constitute sexual harassment.
When an employee commits sexual harassment, he is guilty of misconduct. The law places an obligation on the employer to discipline the harasser for his misconduct, of which the sanction may include dismissal or a final warning, depending on the severity of the sexual harassment. As soon as an employer is made aware of a complaint of sexual harassment, the employer must address the issue promptly, failing which the employee (the victim) may have various claims against the employer.
The employer should afford the complainant the opportunity to elect whether he or she prefers to deal with the grievance on a formal or informal basis.
In terms of the informal approach, the employer will afford the complainant an opportunity to ventilate the issue by addressing the harasser about the unwanted conduct. If this approach is followed the complainant will be provided the opportunity to explain why the said conduct is unwanted, and the employer will further warn the harasser that should he persist with the unwanted conduct, disciplinary steps will be taken against him / her by the employer, and that dismissal may very well follow.
Should the complainant elect to deal with the grievance on a formal basis, the employer will institute disciplinary action against the employee accused of sexual harassment, a disciplinary enquiry will be held by the employer, and an appropriate sanction will be implemented against the aforesaid employee if found to be guilty of such unwanted conduct.
The single most important thing to remember when falling victim to sexual harassment in the workplace is that you are not alone.
Your union, MISA, is just a phone call away!