- 2011/10/02 -

For the recipients of this unsolicited attention it is often difficult to complain to management because so often the victim is not sure whether the conduct constitutes sexual harassment.

The LRA Code of Good Practice deals with the handling of sexual harassment cases and defines sexual harassment as follows;- “Sexual harassment is unwarranted conduct of a sexual nature. The unwarranted nature of sexual harassment distinguishes it from behaviour that is welcome.” Whist this may seem obvious it serves to highlight a defence that some employees use when charged with this offence, in other words the conduct was not unsolicited. However the code goes further and states;- “Sexual attention becomes sexual harassment if-(a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or ( 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.”

So what does this actually mean?. The code again provides the answer. Forms of sexual harassment include physical conduct. So physical strip searches by or in the presence of the opposite sex is regarded as sexual harassment. Verbal sexual harassment includes unwelcome innuendoes, suggestions, hints, advances, comments with sexual overtones, sex-related jokes or insults. A graphic comment about a person’s body also falls into this category as does unwelcome enquiries into a person’s sex life.  This type of sexual harassment often affects women working in environments dominated by men from the shop floor right up to the board of directors.  So when the chairman of the board of directors cracks a sex related joke at a bar with fellow directors and in the presence of a female director, does that constitute sexual harassment ?. Probably not, but if the chairman only relates the joke to the female director in circumstances where he should have known that his behaviour is unacceptable then maybe it is sexual harassment. Persistent telling of sex related jokes would entitle a female employee to complain to management.

Sexual harassment may also take the form of accepting sexual favours in exchange for employment, promotion training, discipline or benefits that an employee may be entitled to.

Sexual favouritism arises where a person in a position of authority only rewards those who respond to their sexual advances.

The Code further provides that an employer is required to create and maintain a working environment in which the dignity of employees is respected. According employers should issue a policy statement stating amongst other things that sexual harassment in the workplace shall not be permitted or condoned and develop procedures to deal with complainants.

So this is the theory but what do you do when faced with this type of challenge. In practice the recipient faces a difficult challenge especially if the perpetrator is a manager or more senior than the recipient. However the law protects a grievant in a number of ways. Section 6 of the Employment Equity Act prohibits direct or indirect discrimination based on amongst other things gender.  Sexual harassment is regarded as a form of discrimination by the employer. In order to establish discrimination a grievant would have to prove the following. First that the conduct complained falls within the definition of sexual harassment, that the harassment started at work, the conduct complained of was immediately brought to the attention of management, and the employer failed to take reasonable steps to prevent the harassment.

However under the common law an employer is under a general duty to take reasonable steps to protect employees against sexual harassment and accordingly an employer would be vicariously liable if a manager to whom sexual harassment was reported failed to take steps against the perpetrator.

Furthermore a grievant may decide to lodge a criminal complainant against the perpetrator because it constitutes criminal conduct. Kevin Allardyce is a practising labour lawyer who may be contacted on 011-694-4060 or Kevin@allardyce.co.za