The best place to start when considering workplace sexual harassment is the Labour Relation Act’s Code of Good Practice on the Handling of Sexual Harassment Cases, which was published as far back as 1998.
This Code addresses such critical aspects of sexual harassment as its definition, forms of sexual harassment, guiding principles, procedures to be followed in such cases, the allocation of additional sick leave in certain circumstances, and employer obligations to educate staff on this important subject.
To begin with, the Code defines sexual harassment as “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behavior that is welcome and mutual”.
The Code goes on to state that “sexual attention becomes sexual harassment if – (a) the behavior is persisted in, although a single incident of harassment can constitute sexual harassment; and (b) the recipient has made it clear that the behavior is considered offensive, and/or (c) the perpetrator should have known that the behavior is regarded as unacceptable.”
The Code is especially informative in listing forms of sexual harassment, and how sexual harassment can be manifested. For example, sexual harassment includes “all unwanted physical contact, ranging from touching to sexual assault and rape. Unsurprisingly, this includes “a strip search by or in the presence of the opposite sex.
But it doesn’t end there. Further forms of sexual harassment include unwelcome innuendos; sexual 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 listed in the Code include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects. So-called ‘quid pro quo’ sexual harassment “occurs 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”.
The Code goes as far as to also state that employers should “issue a policy statement” which confirms the employer’s commitment to all employees right to be treated with dignity, the prohibition of sexual harassment, and the role played by grievance and disciplinary procedures in cases of sexual harassment. In practice, and our firm’s experience in this area, the drafting, and education of staff on, a comprehensive sexual harassment policy meets the requirements of the Code in discouraging sexual harassment and providing a channel to deal with such cases should they arise.
The definition of sexual harassment in the later amended Code in 2005 is that sexual harassment is “…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors – (1) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; (2) whether the sexual conduct was unwelcome; (3) the nature and extent of the sexual conduct; and (4) the impact of the sexual conduct on the employee.’
The Labour Appeal Court judgment in Campbell Scientific Africa (Pty) Ltd v Simmers and Others held that “The treatment of harassment as a form of unfair discrimination in s 6(3) of the Employment Equity Act 55 of 1998 (EEA) recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace”, continuing that ‘‘By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this court has characterised it as ‘the most heinous misconduct that plagues a workplace’.
In SA Broadcasting Corporation Ltd v Grogan NO and Another (2006) the Labour Court observed that sexual harassment by older men in positions of power has become a scourge in the workplace. In Gaga v Anglo Platinum Ltd and Others (2012), the Labour Court held that this Court noted similarly that rules against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinates.