Sexual harassment is a serious matter that needs to be dealt with efficiently and as swiftly as possible to ensure that similar offenses do not occur in the workplace.
Employers need to ensure that their policies and procedures are up to date. Employees should also always feel that they can lodge a grievance with any employer when a sexual harassment misconduct has occurred.
Luckily a Code of Good Practice has been established when faced with sexual harassment in the workplace.
Definition of Sexual Harassment
Sexual harassment may be defined as follows:
1. Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.
2. Sexual attention becomes sexual harassment if:
- The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
- 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
Section 6(3) deems harassment a form of unfair discrimination and affords an employee the opportunity to claim relief even if they have not resigned. This means that an employee does not have to resign in order to lodge a dispute regarding sexual harassment.
The code of good practice provides various forms of sexual harassment which includes physical, verbal and non-verbal conduct. The forms of sexual harassment are not limited to the above and each individual case will have to be determined on its own merits.
What can an employer do to ensure that the workplace is a safe environment?
The code of good practice stipulates that the workplace must create a safe environment in order for employees to feel free to lodge their grievances, and not feel as if their grievances are being ignored or fear that they will receive retaliation from the employee. The workplace must create an environment where sexual harassment is unacceptable.
The employer should further have clear policies and procedures in place, which will assist an employee when wanting to lodge a sexual harassment allegation with the employer.
This includes the following:
1. Advice and Assistance
Sexual harassment is a sensitive issue and a victim may feel unable to approach the perpetrator, lodge a formal grievance or turn to colleagues for support. As far as is practicable employers should designate a person outside of line management whom victims may approach for confidential advice. Such a person:
- Could include persons employed by the company to perform inter alia such a function, a trade union representative or co-employee, or outside professionals.
- Should have the appropriate skills and experience or be properly trained and given adequate resources.
- Could be required to have counseling and relevant labour relations skills and be able to provide support and advice on a confidential basis.
2. Options to resolve a problem
- Employees should be advised that there are two options to resolve a problem relating to sexual harassment. Either an attempt can be made to resolve the problem in an informal way or a formal procedure can be embarked upon.
- The employee should be under no duress to accept one or the other option.
3. Informal procedure
- It may be sufficient for the employee concerned to have an opportunity where she/he can explain to the person engaging in the unwanted conduct that the behaviour in question is not welcome, that it offends them or makes them uncomfortable, and that it interferes with their work.
- If the informal approach has not provided a satisfactory outcome, if the case is severe or if the conduct continues, it may be more appropriate to embark upon a formal procedure. Severe cases may include: sexual assault, rape, a strip search and quid pro quo harassment.
4. Formal procedure
Where a formal procedure has been chosen by the aggrieved, a formal procedure for resolving the grievance should be available and should:
- Specify to whom the employee should lodge the grievance.
- Make reference to time frames which allow the grievance to be dealt with expeditiously.
- Provide that if the case is not resolved satisfactorily, the issue can be dealt with in terms of the dispute procedures contained in item 7(7) of this code.
5. Investigation and disciplinary action
- Care should be taken during any investigation of a grievance of sexual harassment that the aggrieved person is not disadvantaged, and that the position of other parties is not prejudiced if the grievance is found to be unwarranted.
- The Code of Good Practice regulating dismissal contained in Schedule 8 of this Act, reinforces the provisions of Chapter VIII of this Act and provides that an employee may be dismissed for serious misconduct or repeated offenses. Serious incidents of sexual harassment or continued harassment after warnings are dismissable offenses.
- In cases of persistent harassment or single incidents of serious misconduct, employers ought to follow the procedures set out in the Code of Practice contained in Schedule 8 of this Act.
- The range of disciplinary sanctions to which employees will be liable should be clearly stated, and it should also be made clear that it will be a disciplinary offense to victimize or retaliate against an employee who in good faith lodges a grievance of sexual harassment.
6. Criminal and civil charges
A victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code.
7. Dispute resolution
Should a complaint of alleged sexual harassment not be satisfactorily resolved by the internal procedures set out above, either party may within 30 days of the dispute having arisen, refer the matter to the CCMA for conciliation in accordance with the provisions of section 135 of this Act.
Should the dispute remain unresolved, either party may refer the dispute to the Labour Court within 30 days of receipt of the certificate issued by the commissioner in terms of section 135(5). “
Section 6(3) of the Employment Equity Act (“EEA”) deems harassment a form of unfair discrimination and affords an employee the opportunity to claim relief even if they have not resigned. This means that an employee does not have to resign in order to lodge a dispute regarding sexual harassment.
An employee who has fallen victim of sexual harassment may either sue under the EEA or lodge an action for damages in the civil courts.