Following the recent wave of sexual abuse and harassment claims that have been surfacing in the news and on social media in the past few months, it is increasingly apparent that more should be done by employers to address the problem.

Women in particular are often the subject of sexual harassment in the workplace, perpetuated by colleagues or seniors. Sexual harassment can generally be defined as unwanted sexual attention that takes place in the workplace.

The Employment Equity Act and Sexual Harassment

Section 6(1) of the Employment Equity Act explains – “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”

Section 6(3) of the Act states further 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 listed in subsection (1)”.

Therefore, harassment of a sexual nature is a form of unfair discrimination.

Forms of Sexual Harassment

There are several forms of sexual harassment which include:

• Physical (Touching, kissing, groping)
• Verbal (Inappropriate comments/ remarks)
• Non-verbal (Lewd gestures/ indecent exposure)
• Quid-pro-quo (This form of sexual harassment occurs when an employee feels obliged to submit to unwanted sexual advances in order to receive a benefit or to avoid losing a work related benefit)
• Sexual Favouritism (Favouring employees of a certain sex)
• Hostile work environment (Occurs when employees are suffering from sexual harassment to the point that continuing to work in that workplace becomes an impossibility)

Sexual Harassment in the Workplace

The employer has a duty to ensure that all reasonably practicable steps were taken to ensure that his/her employees are acting in a way that does not constitute harassment of any kind and should they not do so, the employer will find themselves in trouble too - as liability will be extended to him/her.

The Labour Relations Act demands that all workplaces have a sexual harassment policy in place to ensure that all employees are aware of what constitutes appropriate and inappropriate behaviour. The policy should indicate that the employer has a zero tolerance policy to sexual harassment and should display the employer’s commitment to creating a safe work environment.

Sexual Harassment Policy

Any sexual harassment policy should also contain clear procedures to help deal with any instances of abuse that occur at work. In this regard it is advisable that an employer appoints members of his staff who are trained to handle these situations. Confidentiality is also of paramount importance especially as allegations of sexual harassment are serious and the victim might not wish any details to become the subject of office gossip or public knowledge.

Employees who have been sexually harassed need to be informed that they can follow either an informal or formal procedure.

Informal Procedure

The informal procedure can be followed by simply approaching the accused and informing him that his conduct is unacceptable. This can obviously be intimidating to the complainant and so in these instances, it is best to approach the accused with a suitably trained colleague or to have witnesses present at the time of the meeting.

Formal Procedure

Formal procedures are attended to in line with the individual company’s disciplinary processes which describe who should deal with the complaint and the relevant time frames to resolve the issue as soon and as completely as possible. A thorough investigation should be undertaken, and all parties made aware of the potential repercussions should the accusations of sexual harassment be proved.

Bailey Haynes – Attorneys Cape Town

The scourge of sexual harassment is almost always underreported and as such, employers should be vigilant and do their utmost to create an environment free of all forms of discrimination so as to ensure a safe and happy working environment for their employees.

Contact our Attorneys in Cape Town for legal advice or assistance.