Sexual harassment is unfair discrimination, regulated by the Constitution, Employment Equity Act, and Promotion of Equality Act. Here are some management guidelines.
The Commission for Conciliation, Mediation and Arbitration (CCMA), has set a voluntary Code of Good Practice on the Handling of Sexual Harassment Cases (2008). Below are some extracts from the law, and the guide. Employees should be informed of their rights and responsibilities.
Advice to victims
Keep notes of your complaint as close to the date of any relevant incidents. As soon as reasonably possible, report your complaint to a person you trust in the workplace. This could be a colleague or a human resources officer. Also seek advice and support.
If the problem is not resolved, report the complaint to management, and follow any grievance procedure, as provided for in section 60(1) of the Employment Equity Act (EE Act). Keep a copy of your grievance and any response by management.
If your complaint is not resolved to your satisfaction, you may refer the complaint of alleged sexual harassment to the CCMA for conciliation, within six months after the act or omission that allegedly constitutes unfair discrimination (sexual harassment).
In your referral (on LRA Form 7.11) you must show that you have tried to resolve the dispute internally by following whatever grievance procedure is available to you.
If you refer your dispute late you will have to show good reasons why you did not refer the dispute in time and you must show that you have reasonable prospects of success.
Employer’s obligations to prevent and manage sexual harassment
As far as is practicable employers should designate one or more persons outside of line management who are available for people to approach for advice, assistance and if need be counselling and should inform employees who they may approach. If a complaint about sexual harassment is brought to the attention of an employer the following steps should be taken by the employer.
FOR MORE INFORMATION CONTACT THE CCMA CALL CENTRE on 0861 16 16 16
OR YOUR NEAREST CCMA OFFICE.
Conciliation of disputes involving sexual harassment
All disputes relating to alleged unfair discrimination, including sexual harassment, are conciliated by the CCMA. Bargaining councils do not have the jurisdiction to conciliate such disputes.
In cases of sexual harassment, all workplace related cases may be arbitrated by the CCMA irrespective of the amount that the employee earns. An employee has a choice between referring the matter to the CCMA for arbitration or to the Labour Court for adjudication.
An applicant has ninety days in which to refer the matter to arbitration or to the Labour Court.
Legal representation is allowed at an arbitration hearing and at the Labour Court, but not in a conciliation hearing.
Burden of proof
Sexual harassment is a ‘listed ground’ in terms of section 6(1) of the EEA. Thus, once an allegation of sexual harassment is made, the employer must prove that such discrimination did not take place as alleged or that the conduct was rational and not unfair, or that it was otherwise justifiable.
Sexual harassment remedies
If it is found that an employee has been unfairly discriminated against, an arbitration award may include an appropriate order that is just and equitable in the circumstance including payment of compensation, payment of damages and an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees. The Labour Court has broader powers that also include the publication of the Court’s order.
Appeals to the Labour Court
Where an employee alleges unfair discrimination on the grounds of sexual harassment, a person affected by an award made by a commissioner of the CCMA may appeal to the Labour Court against that arbitration award within 14 days of the date of the award.
Sexual harassment law
Constitution of the Republic of South Africa (1996)
Employment Equity Act (EE Act), 55 of 1998 (as amended by Act 47 of 2013)
Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUD Act).
Definition of sexual harassment
Sexual harassment is unwelcome conduct of a sexual nature. If you experience unwelcome conduct it is important to indicate that is it unwelcome by telling the person so, or walking away from him or her. If you have difficulty telling the perpetrator you should get help from a co-worker, superior, counsellor, human resources official, family member or friend.
There are times when harassment may constitute a single incident and there may be no opportunity to communicate that it is unwelcome.
You should report sexual harassment to the individual designated by management or to the human resources official as soon as possible.
Several types of conduct can amount to sexual harassment.
Physical conduct can range from rape to physical touching, to other less direct physical acts. Spying on a person in a toilet or change room can constitute sexual harassment.
Touching parts of a body e.g. breasts, hands, legs, buttocks, genitals, the neck and face may constitute physical conduct of a sexual nature. The test is whether a reasonable person in the victim’s position would see it as conduct of a sexual nature.
If an employer conducts routine and regular searches it may not constitute conduct of a sexual nature if there is a good reason for the search (such as to avoid theft) and the search is conducted professionally by a member of the same sex
Verbal conduct can range from suggestive and romantic to crude and offensive remarks, to a blatant demand for sex. Sex-related jokes, inappropriate enquiries about a person’s sex life, and wolf whistling, are conduct of a sexual nature.
Non-verbal conduct of a sexual nature includes unwelcome gestures, indecent exposure, showing pornographic material, displaying or electronically sending explicit sexual pictures.
Forms of sexual harassment
Victimisation: This occurs if a person is intimidated for failing to submit to sexual advances or where there is intention to humiliate or insult a person.
Quid pro quo harassment: This occurs if a person with power influences or attempts to influence a person’s employment opportunities, e.g. employment or promotion in return for submitting to sexual advances. This may also include sexual favouritism where a person is rewarded for being available for sexual favours.
Hostile work environment: This occurs if a person’s right to dignity, privacy, a safe working environment, fair labour practices and freedom and security of the person are harmed by being exposed to sexually unpleasant conduct to such an extent that the workplace becomes hostile.
More detail on general duties of employers
Employers should promote dignity and equality in the workplace by adopting and implementing policies and procedures to eliminate sexual harassment.
The policy should be displayed in a public place such as notice boards and employees should be made aware of the policy.
The policy should allow a complainant to raise a complaint informally (which could be resolved by discussion with or without the assistance of an appropriate third party) or formally.
Employer policies must state that harassment is a form of discrimination and could in serious cases lead to the dismissal of a perpetrator. It should also state that victimisation of any complainant who lodges a complaint in good faith will be dealt with in terms of its disciplinary procedure.
The policy should have clear reporting procedures so that a complainant may report via a friend, colleague, designated manager or any other person that the employee trusts.
An informal procedure should allow the complainant or another appropriate person to explain to the perpetrator that the conduct complained of is not welcome even in appropriate circumstances without identifying the complainant. This would be appropriate if the conduct has been directed at more than one person.
If, after investigation, the conduct raises significant risk of harm, the employer should assess the risk to the workplace and may advise the complainant to raise a formal grievance. If the complainant does not wish to do so the employer may still have an obligation to initiate disciplinary proceedings against the perpetrator.
Employers should notify employees and their trade union representatives, clients, suppliers and contractors of their policies and procedures and encourage them to report any violation of the policy.
Special training should be given to managers, supervisors and shop stewards on sexual harassment and the need to eliminate it.
An employer who fails to take the steps necessary to eliminate sexual harassment in the workplace and to comply with its obligations under the EEA may be held liable for the conduct of its employees, unless it can show that it did all that was reasonably practicable to ensure that the perpetrator would not contravene the EEA.
DOL, citing CCMA
Code of Good Practice on the Handling of Sexual Harassment Cases (2008)
Employment Equity Act 55 of 1998 (as amended)