Mike says it took him a while to recognise that he was a victim of workplace sexual harassment. It all started when his boss, who was 20 years his senior, demanded he have dinners with her, which seemed innocent at first. One day, however, she asked that he join her on an overseas trip.
Mike was not averse to joining his boss on the trip because it was work-related. But, on their arrival, she insisted that they share a hotel room and, although Mike says this shocked him, he felt paralysed and unable to say no to this strange suggestion. He says he was reluctant to disappoint her because she had always been so good to him.
When they got the room, she suggested that they “play” and assured him that his work would not be affected. In fact, she hinted that Mike was ready for greater responsibility within the company and that she could make this happen.
Mike says he tried his best to convince her politely that this may cause problems because workplace relationships hardly ever worked, they were both married and he was a devout Christian who was uncomfortable with the idea of cheating on his wife.
She complained about her husband and how he abused her and said he was unbelievably boring in bed.
Mike sympathised and said he felt pressured not to disappoint his boss. He ended up in bed with her.
She demanded that they continue to see each other privately and, although he tried to get out, he was unable to because she was his manager and the prospects of a promotion she promised seemed worth it. But he felt dirty and struggled each day.
Eventually Mike told a friend about his dilemma and his friend informed him that he might be a victim of sexual harassment. Mike was confused.
This is a normal response because most people assume sexual harrassment happens to women only.
Although it disproportionately affects women, men also face it. Yet, fundamentally, both men and women are often unable to recognise sexual harassment as such although their experiences plainly meet the legal definition. Employers need to understand this.
The term sexual harassment is defined in the Labour Relations Act’s Code of Good Practice on the Handling of Sexual Harassment Cases as: “unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.”
This code sets out appropriate procedures to deal with the problem of sexual harassment and prevent its recurrence. It provides examples of sexual harassment, which “may include unwelcome physical, verbal or nonverbal conduct”. Unwanted physical conduct ranges from “touching to sexual assault and rape”, among other things.
When responding to sexual harassment complaints, companies rely on this code, their internal policies and other internal codes.
Can we confidently say Mike consented to sex with his boss? Consider that the Sexual Offences Act defines consent as voluntary or uncoerced agreement.
The Act states that there can be no consent when there is an abuse of power or authority by another person to the extent that the complainant is inhibited from indicating his or her resistance to the sexual act or unwillingness to participate in such a sexual act. Where there is no consent, a rape takes place.
Men and women may abuse their power or authority and both may be victims of that authority. Yet, even in the face of this, many would argue that Mike consented to the sex with his boss, without considering that his boss may have abused her power to the extent that Mike could not say no.
That he is a man and she is a woman may be viewed as a problem by some because many people believe that only men can abuse their power — because men abuse their power under those circumstances more often.
But, fundamentally, because sexual harassment is traditionally and legally accepted as misconduct and not criminal conduct, acts such as sexual assault and rape, which are criminally prosecutable, may not always be accepted or viewed as relevant to the charge of sexual harassment, even though they are listed as forms of sexual harassment in the code.
It may constitute a material error of law to aver that sexual assault, rape or lack of consent would not constitute sexual harassment in terms of the definition provided in the Code of Good Practice.
Also, the analysis that sexual assault or rape cannot constitute sexual harassment is materially flawed because the determination of “unwanted” conduct is always subjective. The main point is that men can also be raped and can also be confronted with sexual harassment. Furthermore, sexual harassment is complex, like all other sexual violations.
Palesa Lebitse is a liberal feminist who regularly writes for the M&G