According to studies published in the South African Journal for Human Rights, 76 percent of career women experience harassment at work. Here’s what you need to know if it happens to you or someone you know:
WHAT IS SEXUAL HARASSMENT
Jennifer Williams, director of the Women’s Legal Centre (WLC), defines sexual harassment as unwelcome conduct of a sexual nature that violates the rights of an employee and is a barrier to equity in the workplace, considering the following factors:
Is the harassment on the grounds of sex and/or gender and/or sexual orientation?
Is the sexual conduct unwelcome?
What is the nature and extent of the sexual conduct?
What is the impact of the sexual conduct on the employee?
The “welcomeness” of the attention is key in determining sexual harassment. This addresses the rather chauvinistic defence that sexual gestures are meant to be taken as jokes or not meant to be offensive.
TYPES OF SEXUAL HARASSMENT
Sexual harassment includes physical, verbal or non-verbal conduct. The extreme form is, of course, rape; but unwelcome comments, gestures, whistling, e-mails and the display of sexually explicit pictures or objects are recognised as sexual harassment.
The most complex form of sexual harassment is quid pro quo harassment — where someone tries to influence an employee’s circumstances (such as promotion, salary, or other benefits) by trying to force that employee to surrender to sexual advances.
WHAT THE LAW SAYS
Section 6 of the Employment Equity Act (EEA) 55 of 1998 states that, “harassment of an employee is a form of unfair discrimination”. This is important because not only is unfair discrimination prohibited in the workplace, but there is an obligation on employers to take steps to eliminate it.
In 1998, the National Economic Development and Labour Council (NEDLAC) published a Code of Good Practice on the handling of sexual harassment cases. This Code was amended in 2005, and brings sexual harassment clearly within the confines of the Constitution and the discrimination framework of the EEA. What this means is that once you’ve proved the harassment, it is automatically deemed discrimination. (Previously, you had to prove there was harassment and that it was discriminatory.)
DUTIES OF EMPLOYERS
Employers are legally obligated to take steps to stamp out sexual harassment in the workplace and should “create and maintain a working environment in which the dignity of employees is respected.” All companies, no matter how small, should have a sexual harassment policy — not having an official policy is not a defence for employers who do nothing.
This includes dealing with complaints in a sensitive, efficient, effective, and confidential manner. Employers are encouraged to appoint a person outside of management whom employees can approach for advice and counselling; and employers may not retaliate against employees who lodge grievances.
TAKE ACTION
What to do if it happens to you:
Report the harassment to a superior immediately. The sooner the better, although the Code does recognise that it can be very hard to speak out for fear of reprisal. If the person doing the harassing is your boss, speak to the HR department, a trusted senior employee or go outside the company to a help organisation (see list of contact numbers below).
You can ask somebody to report the conduct on your behalf.
Your employer is required to consult all those involved, take the necessary steps to address the complaint in accordance with the Code and the company’s own policy — and take steps to stop the harassment.
Your employer must let you know what formal and informal procedures are available to deal with the harassment. The informal procedure is where you, or someone else on your behalf, approaches the perpetrator and explains that the behaviour is offensive and unwelcome (the identity of the complainant need not be revealed). The formal procedure can be followed with or without first following the informal procedure. The formal procedure is to lodge a grievance in terms of the employer’s sexual harassment policy.
If the matter is not satisfactorily resolved, you can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Even if you don’t follow a formal procedure, your employer should still investigate your complaint to assess the risk to other people in the organisation, if steps have not been taken against the perpetrator.
It’s your right to keep the matter confidential. Find further assistance, contact one of the following resource centres countrywide:
Women’s Legal Centre: 021-4211380 or visit www.wlce.co.za
Commission for Conciliation, Mediation and Arbitration (CCMA) www.ccma.org.za for regional numbers
” Rape Crisis Cape Town Trust 021-4479762, 021-3619085 or go to www.rapecrisis.org
/ POWA (People Opposing Women Abuse): 011-6424345/6, or go to www.powa.co.za
Rural Education, Awareness and Community Health (REACH), 021-6335287 or visit www.reach.org.za
Tshwaranang Legal Advocacy Centre (TLAC) 011-4038230/4267, alternatively visit www.tlac.org.za
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