Glenda Daniels
The grey area of what constitutes “unwanted” sexual conduct in the workplace will become clearer when a Labour Court case brought on behalf of a woman by the Women’s Legal Centre in Cape Town is heard in November.
This will be the first time in South Africa that there is a claim for punitive damages. The woman, in her late 20s, is charging her supervisor with indecent assault after he ejaculated on her skirt. The centre is claiming liability from the employer for not taking steps to deal with the offender.
Whistling, innuendo, touching, inappropriate gestures, suggestions, hints, sex-related jokes, graphic comments about bodies and showing colleagues sexually explicit objects and pictures constitutes sexual harassment.
Most employers don’t know they are at risk of legal action if they don’t have appropriate codes of conducts in place and if they don’t take necessary steps after a complaint.
Sexual harassment is “unwanted conduct of a sexual nature”, according to the Labour Relations Act (LRA).
“It is completely in employers’ interests to have in place sexual codes of conduct so that they escape liability but even though this is now set out in law in the LRA and Employment Equity Act, not enough employers have done this,” says Carol Cooper, head of the labour project at the Centre for Applied Legal Studies.
“According to a survey 76% of South African women had experienced some form of sexual harassment, some regularly and some occasionally 40% of those women had left their jobs or changed jobs due to the harassment. Subsequent to the Employment Equity Act, 12 cases have been reported in the Labour Court in the past two years,” says attorney Deborah Quenet, head of the violence against women project at the legal centre, who will be representing women in the Labour Court.
The second case, of a woman in her 30s, will be heard early next year. The woman’s shirt was pulled at, her zip pulled down, and yet she was later dismissed from her job. This might make case law on determining what is “unwanted” behaviour.
The law says a code of good practice aims at eliminating the problem in the workplace, providing procedures to be followed to protect the dignity and privacy of individuals.
Allegations of sexual harassment should be dealt with “seriously, expeditiously, sensitively and confidentially”. The law stresses that policies on sexual harassment should be communicated effectively to all employees.
“Sexual favouritism” in the workplace is also part of the legal definition of sexual harassment. It exists “where a person who in a position of authority rewards only those who respond to his/her advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases”.