Identifying sexual harassment in the workplace

Human relationships can be very complicated, especially in a workplace where people have to be in contact with people they would otherwise not socialise with or who they would like to socialise with but otherwise cannot.  When people go to work, they do not push a button somewhere on their body, and suddenly they become emotionless working machines. They remain people with all their emotional baggage, their characteristics, issues and behavioural patterns. Human sexuality thereby also enters the workplace. This is where problems often arise with the interaction between employees in the workplace, and results in someone accuses another of sexual harassment. Inevitably this is denied and becomes an “s/he said s/he said” scenario. An employee who suffered sexual harassment at the hands of a colleague or workplace superior could lay criminal charges against the perpetrator and will have civil remedies against that person. There are also remedies available to that employee in terms of the Employment Equity Act 55 of 1998 as amended (the EEA) against the employer. Similarly, a perpetrator must be severely disciplined by the employer. 

This note is not exhaustive or specific advice, but a guide on how the courts view sexual harassment and how to identify sexual harassment with reference to the CODE OF GOOD PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES IN THE WORKPLACE — GN 1357 of 2005 - GG 27865 of 4 August 2005 (the Code). The Promotion of Equality and Prevention of Unfair Discrimination Act. 4 of 2000, as amended, may also be applicable when the sexual harassment occurred outside of the working environment.

The Labour Appeal Court (the LAC) in MOTSEMAI v EVERITE BUILDING PRODUCTS (PTY) LTD (2011) 2 BLLR 144 (LAC) expressed its abhorrence against such conduct in the following words in paragraph 20: “Sexual harassment is the most heinous misconduct that plagues a workplace, not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of one’s being and must, therefore, be viewed from the point of view of a victim: how does he/she perceive it, and whether or not the perception is reasonable.” In the matter of CAMPBELL SCIENTIFIC AFRICA (PTY) LTD V SIMMERS & OTHERS (2016) 37 ILJ 116 (LAC), the Court confirmed this characterisation and the judgement in the matter of GAGA v ANGLO PLATINUM LTD & OTHERS (2012) 33 ILJ 329 (LAC) that an unequivocal message must be sent out that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty.  Therefore, the perpetrator can expect to be dismissed and the employer may be taken on in the CCMA and the courts. 

An employer is under a statutory obligation to investigate and deal appropriately with complaints of sexual harassment. The failure to do so would lead the employer to be held vicariously liable for compensation, damages and further relief that may be ordered. The matter of LIBERTY GROUP LTD v M (2017) 38 ILJ 1318 (LAC) is a reminder by the LAC in this regard.  The Court found that once an employee has reported the sexual harassment, the employer must ensure that the matter is immediately investigated properly in terms of section 60(2) of the EEA, by consulting with the relevant parties and taking the necessary steps to eliminate the alleged conduct. The employer did not do so in that case. An investigation must also be done. It was found that the employer failed to do so timeously. In other words, the employer failed to do all that was reasonably practicable, as required by section 60(4) of the EEA, to ensure that no conduct in contravention of the EEA occurred.

When there is a complaint of sexual harassment, the following obligations are triggered:

· The conduct must be brought to the attention of the employer immediately. 

· The employer must consult all relevant parties and take the necessary steps to eliminate the harassment and comply with the provisions of the EEA. 

· If the employer fails to take the abovementioned necessary steps and it is proved that the employee has breached the relevant provisions of the EEA, the employer must be deemed also to have breached the provisions of the EEA. 

· An employer is not liable for the conduct of the employee if the employer can prove that it did all that was reasonably practicable to ensure that the employee would not act in breach of the EEA. 

What is sexual harassment though? It is not necessarily what I, as the writer, or you as the reader think it is given our respective values, norms and life experience.  The Court, in GAGA v ANGLO PLATINUM LTD & OTHERS confirmed that the central questions are whether a remark or conduct was unwelcome and caused discomfort, that it is not required that a victim had to be offended before conduct constituted sexual harassment and that the seniority of the perpetrator and victim must be considered. Even an initial response of feeling flattered does not mean that the behaviour did not amount to sexual harassment.

Complaints about sexual harassment must be dealt with by considering the Code fully. It replaced the 1998 code which was repealed in December 2018. The full text of the Code is found at: https://www.gov.za/sites/default/files/gcis_document/201409/278650.pdf.

The Code must be studied by employers and be incorporated into their policies and procedures. Employees must also be made aware of the existence of these policies. Anyone, including chairpersons of investigations and disciplinary hearings, arbitrators and judges, must take the Code into consideration when coming to their conclusions.

Item 3 of the Code provides that: “sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation”. This type of misconduct is thus treated by the legislator in a very serious light as it impacts on the dignity of employees. This is confirmed in section 6 of the EEA.  Therefore apart from it being possible dismissible misconduct and a basis for a civil claim against the perpetrator, it also amounts to unfair discrimination that gives the employee the right to refer a complaint to the CCMA. As referred to above the employer can then be found to be liable if they had not complied with their statutory obligations to take appropriate action and investigate the complaints.

Item 4 of the Code provides the statutory definition of sexual harassment as follows: “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: 

4.1       whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; 

4.2    whether the sexual conduct was unwelcome; 

4.3    the nature and extent of the sexual conduct; and 

4.4       the impact of the sexual conduct on the employee.” 

Unwelcome conduct is described as follows in paragraph 5.2: 

5.2.1                 There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator. 

5.2.2                 Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome. 

5.2.3                 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. 

Item 5.3 of the Code provides as follows:   

5.3                   Nature and extent of the conduct 

5.3.1                 The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct. 

5.3.1.1              Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex. 

5.3.1.2              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 the sending by electronic means or otherwise of sexually explicit text. 

5.3.1.3              Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects. 

5.3.2                 Sexual harassment may include, but is not limited to, victimisation, quid pro quo harassment and sexual favouritism. 

5.3.2.1              Victimization occurs where an employee is victimised or intimidated for failing to submit to sexual advances. 

5.2.3.2              Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances. 

5.3.3                            A single incident of unwelcome sexual conduct may constitute sexual harassment. 

A further factor to be looked at is the impact of the conduct. This is provided for as follows in item 5.4 of the Code which provides that: The conduct should constitute an impairment of the employee's dignity, taking into account: 

5.4.1 the circumstances of the employee; and 

5.4.2    the respective positions of the employee and the perpetrator in the workplace. 

From the reported cases, the following conduct has been found to constitute sexual harassment:

·      A university lecturer promising a failing student she would pass if she slept with him.

·      A senior employee asking a junior employee whether she wished to have a lover when both were staying in the same hotel on work away business.

·      Promising career advancement in exchange for sexual favours.

·      Physically blocking a person’s movements.

·      “Accidentally on purpose” brushing up against a person.

·      Staring or looking someone’s body up and down.

·      Following them around or paying excessive attention.

·      Making insulting comments about someone’s gender identity or sexual orientation or asking about someone’s sexual orientation.

·      Telling lewd jokes or sharing stories about sexual experiences, even if this is not directed at the victim but done in the victim’s presence to cause discomfort.

·      Sending unwanted suggestive or lewd emails, letters or other communications or sharing images of a sexual nature around the workplace or displaying posters, items or screensavers of a sexual nature.

·      Inappropriate and suggestive touching, kissing, rubbing or caressing of a person’s body and/or clothing.

·      Repeatedly asking for dates despite being rebuffed or asking for sexual favours.

·      Making sexually offensive gestures, remarks or facial expressions.

Finally, we must take note that the LAC held in CAMPBELL SCIENTIFIC AFRICA (PTY) LTD V SIMMERS & OTHERS in par 18 that: “Our constitutional democracy is founded on the explicit values of human dignity and the achievement of equality in a non-racial, non-sexist society under the rule of law. Central to the transformative mission of our Constitution is the hope that it will have us re-imagine power relations within society so as to achieve substantive equality, more so for those who were disadvantaged by past unfair discrimination.”   In paragraph 20 the Court continued: “At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often “…less about the abuse of real economic power, and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor.”

Anyone can be a victim of sexual harassment in the workplace: you the reader and I, the job applicant, a student, an intern, a service provider, a general worker, a specialist worker, a manager a contractor, the meek, the quiet, the outspoken, the self-confident and the socially upward mobile.

Daniel du Plessis: Labour law practitioners and active senior part-time Commissioner of the CCMA