Sexual harassment in the workplace is unfortunately a very real and very common occurrence. It is one of the more destructive forms of workplace bullying. It is something that every employer is encouraged to take a stand against and most employers have specific policy in place for governing such behaviour. There is no occupation that is immune from sexual harassment, however employers should ensure that they create and maintain an environment where sexual harassment is never tolerated.
Defining sexual harassment
In the Basic Conditions of Employment Act, No 75 of 1997 the code defines sexual harassment as:
(1) Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. (2) 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.
In the labour guide provided by the CCMA forms of sexual harassment are described as
(1) Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the examples listed as follows:
(a) 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.
(b) 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.
(c) Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects.
(d) 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.
(2) Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.1
Observing due diligence
In order to avoid the risk of being held liable in a sexual harassment case, employers must adopt a sexual harassment policy and ensure all employees are aware of this policy. If a company does not have a policy, then the Employment Equity Act 55 of 1998 Code of Good Practice: Sexual Harassment becomes the guideline in cases where sexual harassment has occurred.
Consult with your company’s labour lawyer to create your written policy; or have your policy reviewed for completeness and to ensure the policy clearly defines harassment in accordance with labour law.
Revise your employee handbook to include your company’s policy on sexual harassment.
Best practices in the human resources professional community suggest that policy statements be revised periodically. Ensure the policy is always consistent with labour laws and applicable legislative changes.
Speak to your human resources department training specialist or EAP about developing training that specifically addresses workplace harassment. The training should be appropriate for all levels of employees from hourly-paid to full-time employees and from most junior workers to executive leadership.
- Announce schedules for mandatory attendance at these training sessions. If you have employees who work shifts or outside normal business hours, arrange training sessions to accommodate their schedules.
- Distribute copies of your company’s anti-harassment policy as written policy statements impact how much information is retained.
- Include your company procedure for reporting, investigating and resolving harassment complaints in the training session.
- Obtain a signed acknowledgment form from every attendee indicating she understands the company policy against harassment and file signed acknowledgments in employment files stored in the human resources department.
- Update and reissue the policy statement every year, and provide training every year.
The typical process is for the employee to first address the issue with his supervisor, then his manager. If he is uncomfortable discussing the subject with his supervisor or manager, the employee should visit your company’s EAP or human resources specialist.
Several harassment claims that have gone to court include allegations that the employer sat on a complaint without fully investigating it. Remind employees that investigations require full cooperation from the employee, the alleged harasser and any witnesses to the alleged harassment.
Be accessible to employees
Make your human resources department available to answer any questions employees have about the training or incidents of harassment.
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