Sexual harassment – Misconduct that plagues a workplace

Sexual harassment is making headline news worldwide. Just how pervasive this is has been highlighted in recent months as women across the world speak out for the first time, as the #MeToo campaign gains momentum.

In fact, a BBC survey of over 2 000 British adults found that 53% of women and 20% of men had experienced sexual harassment, ranging from inappropriate comments to sexual assault at work or a place of study. 63% of these women and 79% of the men did not report the incident. The survey was commissioned in the wake of the sexual assault claims against Harvey Weinstein.

How to keep your company a safe place to work, free from discrimination and harassment

What is sexual harassment?

Sexual harassment is defined as any unwelcome attention of a sexual nature that happens in the workplace and that offends, humiliates or intimidates someone. This includes:

• Touching
• Unwelcome sexual jokes
• Unwanted questions about your sex life
• Whistling
• Rude gestures
• Requests for sex
• Being stared at in an offensive way
• Sexually explicit communications via email, SMS or social media

What are your legal obligations as an employer?

Sexual harassment in the workplace is governed by the Employment Equity Act  No 55 of 1998 (EEA)  and the Amended Code of Good Practice on The Handling of Sexual Harassment Cases in the Workplace. The Code states that employers have a responsibility to create a safe working environment, free from any form of discrimination and harassment, including sexual harassment, where employers and employees respect one another’s integrity, dignity, privacy and equality.

What to do to ensure your company can defend any sexual harassment claims

Harassment is a form of unfair discrimination and is prohibited under the Employment Equity Act. Employees found guilty of harassment may be dismissed. In fact, the Labour Appeal Court defines sexual harassment as “the most heinous misconduct that plagues a workplace”. Employers must therefore take both proactive and reactive steps to avoid liability.

1) Make sure your company has a sexual harassment policy in place and it is communicated to all staff. The policy must allow for employees, as well as clients and suppliers, to raise a complaint both informally and formally. Poor awareness and training as well as a lack of implementation of the policy can result in employers being held liable for the conduct of an employee found guilty of sexual harassment.

2.) Employers must take action once they become aware of a possible sexual harassment incident. Section 60(3) of the Employment Equity Act effectively holds an employer vicariously liable for the unlawful, discriminatory conduct of its employees. The concept of vicarious liability is interesting as it does not explicitly require the employer to have been previously aware of the sexual harassment. Instead, liability stems from the fact that the employee was acting in the course and scope of their employment when engaging in the sexual harassment, regardless of actual knowledge of the employer.

The onus is on the employer to prove that it did all that was reasonably practicable to ensure an employee would not act in breach of the EEA.

Abuse of authority

Sexual harassment is frequently at play in power relationships – between a manager and a subordinate for example –  as in the case of Christian v Colliers Properties (2005) 26 ILJ 234 (LC), where a secretary was dismissed after a couple of days in her new job after refusing to give in to her superior’s sexual advances. She was awarded 24 months’ compensation.

In many cases, an employee who is subject to sexual harassment will be entitled to resign and claim that they were constructively dismissed, if the employer fails to take adequate action. In such a situation, the court will award the maximum compensation in terms of the LRA, plus damages under the Employment Equity Act.

Taking remedial action:  responding to a sexual harassment claim

1. Take the complaint seriously. Listen carefully, be sensitive and remain impartial at all times.
2. Take notes so you have a record of dates, times, witnesses and any other facts that may be relevant.
3. Explain to the victim what their options are in dealing with the situation.
4. Only address the harasser with the complainant’s permission.
5. Offer to provide support through an accredited psychologist or counsellor.
6. Inform the alleged harasser that you have received a complaint against them which you will be investigating and that this may lead to disciplinary action and suspension. Let them know they will be guaranteed a fair hearing but the company will not tolerate retaliation or victimisation in any form.
7. Make sure that the employee is not victimised or dismissed for reporting the harassment or for refusing to give in to unwanted sexual advances.
8. Victims of sexual harassment often seem to “go along” with the harassment, making jokes of a similar nature, or delaying in reporting the harassment. This behaviour is consistent with being the victim of a trauma and this delay cannot negatively influence a complaint of sexual harassment.

We can help

SD Law & Associates are labour law experts. For assistance dealing with any sexual harassment issues or for help formulating your sexual harassment policy, contact Simon on 087 550 2740 or email simon@sdlaw.co.za.

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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