South African businesses must ensure they have a policy in place to deal with sexual harassment in the workplace and that this policy is effectively communicated and understood by all employees.
This is according to Sisi Nxumalo, a professional speaker focusing on employment law, who was speaking at the SASLAW Women’s Breakfast Seminar, held at the Cape Town offices of Bowmans law firm recently. Nxumalo told the audience how businesses could safeguard themselves against sexual harassment lawsuits.
“According to the Employment Equity Act 55 of 1998 Code of Good Practice: Sexual Harassment, employers must adopt a sexual harassment policy and they must ensure all employees are aware of this policy. Employers should also ensure that they create and maintain an environment where sexual harassment is never tolerated. These two steps eliminate the risk of an employer being held liable in sexual harassment cases,” she noted.
In early August, research conducted by the Trades Union Congress and the Everyday Sexism Project in the United Kingdom (UK) found that 52% of women in the UK alone had experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes.
Nxumalo explained that South Africa’s Code of Good Practice for Sexual Harassment set out the practices that a workplace policy should include.
“If a company does not have a policy, then the Code of Good Practice becomes the guideline in cases where sexual harassment has occurred,” she said.
She explained that the sexual harassment policy should be tailored to the workplace so that differences in environments can be accommodated. An element of discretion was given to the employer as to how to proceed during a sexual harassment case, as each workplace is different, but employers should follow the Code of Good Practice as a general rule.
Nxumalo commented that South Africa’s sexual harassment laws are informed by the Constitution, where gender equality and human dignity underline the country's legal framework.
“If sexual harassment has taken place, an employee usually reports this to HR or is directed to another relevant person to report the issue. Then an investigation should take place to ensure that sexual harassment has occurred. This first step should always be to ascertain the nature of the harassment and whether or not it took place,” she explained.
She said that in order to deal with the harassment, it was important to bear in mind the nature of the harassment. For instance, a graze on the shoulder that has made someone uncomfortable may be treated differently to a forced kiss in the elevator. A more serious charge might also involve investigations to gauge whether the company was dealing with a serial perpetrator and if disciplinary action should be taken.
“Broadly speaking, sexual harassment does affect women more than men, but men are also subject to sexual harassment. In addition, same-sex harassment must be taken as seriously as heterosexual harassment,” she noted.
“In certain industries, particularly male-dominated industries, sexual harassment is very rife. Thus it is difficult for victims of sexual harassment to come forward as they fear that this may be a career-limiting move. According to the Bar Standards Board report, female barristers are not reporting harassment and discrimination over fears their careers will suffer – nearly eight out of ten female barristers who have experienced sexual harassment chose not to report their experiences,” she said.
Nxumalo added that the purpose of the Employment Equity Act was to provide a fluid environment where equity in the workplace was expected and enforced.
“The law is there to protect all races and genders, and to ensure they have the same opportunities and rights in the workplace, including the right to work in an environment free from harassment,” she concluded.