Sexual Harassment in the workplace – what employers need to know

What are the rules of the workplace relating to Sexual Harassment specifically at year-end parties? 

Employers that fail to comply with the necessary legislation risk getting caught up in unnecessary legal action and disputes.With the recent #METOO campaign in Hollywood and the deplorable revelations of Sexual Harassment at the SABC, victims of Sexual Harassment have finally been given a resounding voice and platform to be heard. As we near the end of 2018, many companies will be planning extravagant year-end parties. These parties allow for more casual interaction with colleagues. However, the rules of the workplace relating to Sexual Harassment are still very much applicable at a year-end party, irrespective of whether it occurs on the company premises or at an alternative random location, during or after office hours.

In terms of Item 4 of the Code of Good Practice on the Handling of Sexual Harassment (the Code), which is a schedule to the Employment Equity Act (EEA), Sexual Harassment is defined as 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 the following factors:

  • Whether the harassment is based on the prohibited grounds of sex and/or gender and/or sexual orientation;
  • Whether the sexual conduct was unwelcome;
  • The nature and extent of the sexual conduct; and
  • The impact of the sexual conduct on the employee.

The following factors establish the existence of Sexual Harassment (Item 5.2):

  • There are different ways in which an employee can indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.
  • Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.
  • Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person, such as a co-worker, superior, counsellor, human resource official, family member or friend.

The following factors establish the nature and extent of the Sexual Harassment (Item 5.3):

  • The unwelcome conduct must be of a sexual nature, including physical, verbal or non-verbal conduct.
  • Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip searches by or in the presence of the opposite sex.
  • Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and sexually explicit texts sent electronically or otherwise.
  • Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending of sexually explicit pictures or objects by electronic means or otherwise.
  • Sexual harassment may include, but is not limited to, victimisation, quid pro quo harassment and sexual favouritism.
  • A single incident of unwelcome sexual conduct may constitute sexual harassment.

Previously victims of Sexual Harassment were forced to refer their disputes to the Labour Court for adjudication. However, in terms of the amended section 6(1)(aA) of the Employment Equity Act (EEA), the CCMA now has jurisdiction to arbitrate cases of sexual harassment–

  • where a dispute regarding discrimination remains unresolved after conciliation, in which case an employee (the victim) may refer the matter to the CCMA for arbitration if the employee alleges unfair discrimination on the grounds of sexual harassment.

 In the case of Liberty Group Limited v M (JA105/2015) [2017] (LAC), the Labour Appeal Court held that the requirements for employer liability in regard to Sexual Harassment disputes under the EEA were as follows:

  • The alleged sexual harassment conduct was committed by another employee.
  • It was sexual harassment constituted unfair discrimination.
  • The sexual harassment took place at the workplace or within a work environment.
  • The alleged sexual harassment was immediately brought to the attention of the employer.
  • The employer was aware of the incident of sexual harassment.
  • The employer failed to consult all relevant parties or take the necessary steps to address the conduct.
  • The employer failed to take all reasonable and practical measures to ensure that employees do not act in contravention of the EEA.

The potential risks that Sexual Harassment disputes pose for an employer can be catastrophic if not addressed professionally and promptly from the outset. SERR Synergy assists employers to develop workplace policies and procedures to tackle the scourge of Sexual Harassment in the workplace. We will attend to the first consultation meeting between the employer and other party and will assist with the potential disciplinary hearing of the accused employee and representation of the employer and victim at the CCMA.

About the Author: Jared Francis joined SERR Synergy in October 2016 and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a post-graduate diploma in Industrial Relations and a post-graduate certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds post-graduate certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.