Sexual harassment and the law

Sexual harassment is more common than people realise and is an assault on one’s physical, emotional and psychological integrity.

The difficulty with sexual harassment is that there is no magic formula to determine what conduct constitutes sexual harassment. Furthermore, is it important to know how the person being harassed feels about the harassment.

It is commonly, though incorrectly, believed that only men are the perpetrators of sexual harassment in the work place, but this is often not the case.

What the law provides

Victims of sexual harassment in the work place are protected by law. Both our Employment Equity Act and our Labour Relations Act provide protection to victims of this type of insidious harassment as well as creating guidelines for employers on what steps to take should a matter of this nature arise within their organization.

The Code of Good Practice on the Handling of Sexual Harassment cases defines sexual harassment as unwanted conduct of a sexual nature distinguishing it from behaviour that is welcome and mutual.

Sexual attention becomes sexual harassment if:

a.    The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment;
b.    The recipient has made it clear that the behaviour is considered offensive; and/or
c.    The perpetrator should have known that the behaviour is regarded as unacceptable.

The conduct can be physical, verbal or non verbal (such as leaving pornographic material in plain view) and forms of quid pro quo (in which a co-worker or superior attempts to influence the victim to exchange sexual favours for some benefit to the victim).

What to do if you are a victim of sexual harrassment

The law provides that your employer is required to deal effectively with a complaint of sexual harassment, which would include protecting you, the victim, and disciplining the perpetrator.

Employers are under a positive duty to develop policies to be implemented in the workplace with procedures to deal with instances of sexual harassment.

Recent case law has set out that failing to adequately protect employees against this type of abuse or failing to take adequate measures, should an incident of sexual harassment have been reported, can lead to the employer being found liable and having to compensate the victim.

As such, employers are no longer able to turn a blind eye to conduct amounting to sexual harassment in their organization and if they do, they are opening themselves up to enormous liability.

If you are being victimized by such behaviour, report it to your superior

If the person harassing you is your superior, advise their superior of their conduct. If the behaviour amounts to indecent assault or some other criminal offence, you are always entitled to approach the police.

Always remember to follow your company’s procedures on sexual harassment and/ or grievance procedure if they are in place (which they ought to be) and remember to document all the facts relating to the harassment.

If you are able to do so, record the events in a diary giving evidence of a time-line of the harassment and keep all documentary proof relating to the harassment and the steps you have taken to protect yourself.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za