By Adv. Ria Matsala
All women have the right to be treated equally, with dignity and respect. Women also have the right to a safe workplace that is free from sexual harassment.
Although it has been more than 60 years since the historic march of approximately 20,000 women to the Union Buildings in protest against the apartheid government’s unjust laws, women in South Africa still face many injustices.
Movements such as #MeToo, #TimesUp, #NotInMyName and #AmINext have shed light on the prevalence of sexual harassment in the workplace and brought to the foreground its key victims – women. In fact, at the time of writing this article, women in South Africa’s entertainment industry took to twitter to share personal accounts of sexual harassment on production sets in an attempt to publicise the rampant harassment of women in the industry. Reading their stories has reinforced my belief about the importance of this article, particularly because many women don’t know about the avenues available to afford them redress as well as the steps they can take to protect themselves against their perpetrators.
What is sexual harassment?
The Labour Appeal Court has described sexual harassment as being “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.”[1]
The Employment Equity Act No 55 of 1998 (“the EEA”) recognises sexual harassment as prohibited unfair discrimination. The 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (“the 2005 Amended Code”) defines “sexual harassment” as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace. The conduct may be physical, verbal and non-verbal. The following are examples of sexual harassment:
- Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.
- Verbal forms of sexual harassment include unwelcome innuendoes, 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 directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling directed at a person or group of persons.
- Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects.
- Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.
The perpetrators (and victims) of sexual harassment may include owners, employers, managers, supervisors, employees, job applicants, clients, suppliers, contractors as well as others having dealings with a business. Non-employees may also be victims of sexual harassment if it has taken place in the workplace or in the course of the harasser’s employment.
How to deal with sexual harassment?
The law requires all employers to adopt a sexual harassment policy which should be communicated effectively to all employees. The sexual harassment policy must set out clear procedures to deal with sexual harassment and enable the resolution of problems in a sensitive, efficient and effective way.
A victim of sexual harassment must report it to the employer as soon as reasonably possible in the circumstances and without undue delay. If the victim is fearful, any other person who is aware of the sexual harassment, for example a friend, colleague or human resources official acting on the request of the complainant, may bring the sexual harassment to the employer if the victim has indicated that she wishes the employer to be made aware of the conduct.
Once the complaint is received, the employer must investigate and consult all the relevant parties, take the necessary proactive and reactive steps to address the complaint and eliminate the harassment, and comply with the provisions of the EEA. An employer must ensure that all complaints, investigations and disciplinary actions relating to sexual harassment are kept confidential.
If the employer elects to do nothing, the employer will have contravened the EEA and can be liable to pay damages or compensation to the victim of the sexual harassment.
The victim may also refer a sexual harassment dispute to the CCMA if she is not satisfied with the steps taken by the employer and/or the outcome.
In addition to the remedies provided by the EEA, the Protection from Harassment Act No 17 of 2011 allows a victim to obtain a protection order against harassment. The perpetrator may be arrested or fined if they fail to comply with the terms of the protection order.
The developments in our law and the remedies afforded to victims should encourage women to take a stand, speak out and act with the same courage as the women who marched to the Union Buildings. After all, Wathint’Abafazi Wathint’imbokodo! [you strike the women, you strike a rock].
Adv. Ria Matsala, Advocate at the Cape Bar
[1] Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) at para [20].