Sexual Assault (2): Sexual harassment in the workplace
ACCORDING TO LEGISLATION, EMPLOYERS HAVE A POSITIVE LEGAL DUTY TO ENSURE THAT THE WORKPLACE IS FREE FROM UNFAIR DISCRIMINATION. WHAT THE LEGISLATURE AND DISCIPLINARY BODIES ALIKE DO NOT TAKE INTO CONSIDERATION ARE THE DELICACIES OF THE POWER DIFFERENTIALS BETWEEN MEN AND WOMEN (NOT ONLY AS BETWEEN SUPERIORS AND SUBORDINATES) IN THE WORKPLACE AND THE TRAUMA SUFFERED BY THE VICTIMS OF SEXUAL HARASSMENT. UNTIL THERE IS AN UNDERSTANDING OF THESE INHERENT POWER DYNAMICS THAT EXIST IN THE WORKPLACE, SEXUAL MISCONDUCT WILL CONTINUE TO PERSIST IN THAT SPACE.
18 April 2019
Sexual harassment is defined as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace. In the working environment, sexual harassment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation. Forms of sexual harassment include physical, verbal, non-verbal and quid pro quo conduct. Interestingly, sexual attention in the workplace appears to be permissible. It is only once sexual attention becomes either persistent or ‘serious enough’ (if a single incident) that it crosses over to the territory of the impermissible – ‘sexual harassment’ being the key words. Given that sexual attention and harassment in the workplace are predominantly targeted at and committed against women, for purposes of this article victims will be referred to in the feminine and harassers in the masculine.
The arbitrary permissibility of sexual attention in the workplace is problematic for three reasons. The first is that it creates a subjective test for sexual harassment where the victim is required to prove that the sexual attention received was unwelcomed by her (again shifting the onus of proof on to the victim) in order for it to constitute the prohibited conduct of sexual harassment. The second reason is that, in the case of a ‘single incident’, it gives adjudicators an unbridled discretion to determine whether or not the sexual attention was ‘serious’ enough to amount to sexual harassment and warrant dismissal. The third reason is that sexual attention – whether welcomed or unwelcomed, once off or persistent, ‘serious’ or ‘trivial’ – is inappropriate and constitutes unprofessional conduct, which does not belong in the workplace. The existence and permissibility of sexual attention in the workplace performs exactly the same discriminatory function as sexual harassment. Prior to women’s participation in the workplace, sexual attention did not feature as often as it does now in that space. Sexual attention, and not just harassment, therefore undermines its predominantly female targets and reinforces the same inequalities as its persistent or ‘serious’ relative, sexual harassment.
According to legislation, employers have a positive legal duty to ensure that the workplace is free from unfair discrimination. This means that an employer may be held vicariously liable for sexual harassment (the only existing offence of a sexual nature in the workplace currently) committed by employees in the workplace, provided that the victim “immediately” reports the conduct to the employer – failing which the employer cannot be held liable.
This insensitive legislative requirement to “immediately” report sexual harassment does not take into consideration the delicacies of the power differentials between men and women (not only as between superiors and subordinates) in the workplace and the trauma suffered by the victim. Its effect has partly been buffered by the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace’s (“the Amended Code”) attempt at clarifying the meaning of “immediately”. The Amended Code explains “immediately” to mean ‘as soon as is reasonably possible in the circumstances and without undue delay, taking into account the nature of sexual harassment, including that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace’.
What the legislature and disciplinary bodies alike do not seem to be cognisant of is that victims of sexual harassment report the conduct to their employers as a last resort. Victims would rather blame themselves for the harassment, avoid their harasser or appease him. There is a legitimate fear among victims that reporting will not result in a guilty finding, or that it will make matters worse for them. This understanding should work to dispel the myth that victims of sexual harassment should handle the matter assertively by confronting their harasser and/or report him to the appropriate authorities.
In the light of what has been outlined above, the confidentiality of the identities of victims of sexual harassment in the workplace must be revisited. The workplace is a confined space. It determines the victim’s career trajectory and provides her with the only means for earning a living. Against this background there is no incentive for a victim to come forward and expose herself in the process of exposing her harasser (especially if he holds a senior position). This is particularly so because of the possibility that a disciplinary body may find in favour of the harasser. Such an outcome would require the identified victim (the complainant) to continue working with her harasser, or worse, risk a form of constructive dismissal.
According to the Code of Good Practice (“the Code”), the identities of persons involved in grievances, investigations or disciplinary enquiries are to be kept confidential by both employers and employees. Employers are required to disclose to either party or to their representatives such information as may be reasonably necessary to enable the parties to prepare for any proceedings in terms of the Code. Although the application of the Code may protect the identities of the parties against public knowledge, it does little in the way of protecting the complainant (and her identity) from her abuser, and even from her employer. In such cases the audialterampartem principle may, and should, be limited by public interest considerations pertaining to confidentiality.
Perhaps a more appropriate body for hearing complaints of so sensitive a nature in such an intimate setting as the workplace is not a disciplinary body (in terms of labour law), but rather a panel of inquiry with a fact finding mandate. The advantage to using such a body is that, due to its fact and not verdict finding mandate, a panel of inquiry may adhere to its own rules. This could allow for the submission of anonymous complaints with no right to examine witnesses – which creates a more encouraging environment for victims to come forward. The panellists would be the only actors with an inquisitorial role in this truth-finding mission. The victim’s version (which would usually expose her identity) need not even be put to the alleged harasser as the truth may be sought by other means. The disadvantage of using such a body, however, is that it is only empowered to make non-binding recommendations and cannot provide verdicts with an accompanying sanction of dismissal as with a disciplinary inquiry.
Recently publicised allegations and incidents of sexual harassment have, ironically, been located in institutional settings of human rights centric organisations such as the United Nations, the African Union and South Africa’s own Equal Education.
A High Level Committee Report, dated 22 November 2018, unanimously confirmed the prevalence of sexual harassment in the African Union. These abuses were perpetuated by supervisors over female employees, with the perpetrators primarily exploiting the victims’ insecurity of tenure.
In the case of the United Nations, Deloitte’s Safe Space Survey Report, dated 15 January 2019, revealed that United Nations peacekeeping soldiers deployed in war-torn nations abused their positions by preying on vulnerable and impoverished women and girls. It also revealed that harassment is a serious problem at the United Nations and that 58% of sexual harassment incidents at the United Nations happen in an office setting.
The Panel of Enquiry appointed to investigate Equal Education’s alleged culture of sexual harassment yielded split reports, and no findings were made. A legalistic approach was adopted by the panellists who produced the majority report. The anonymity of the victims was used as the sole ground for dismissing their complaints. One criticism of this approach is that it displays a misunderstanding of the nature of sexual harassment and the power dynamics which invariably accompany it. In fact, this outcome raises all the tensions and contradictions which will need to be addressed systematically in the review and reform of labour law.
Until there is an understanding of the inherent power dynamics that exist in the workplace, sexual misconduct will continue to persist in that space.
By Lee-Anne Germanos, Legal Researcher, HSF, 18 April 2019
Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, issued in terms of section 54(1)(b) of the Employment Equity Act 55 of 1998 at para 4.
Supra at para 3.
Ibid fn1 at para 5.3.1. Quid pro quooccurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances by coercing or attempting to coerce an employee to surrender to sexual advances.
Piliso v Old Mutual Life Assurance Company (SA) Limited and Others (2005) ZALC 107 (LC) at para 7.
Section 60(1) of the Employment Equity Act.
Ibid fn1 at para 8.1.2.
L Fitzgerald and S Swan ‘Why Didn’t She Just Report Him? The Psychological and Legal Implications of Women’s Responses to Sexual Harassment’ (1995) 51 Journal of Social Issues 117 at 121.
Supra at 120.
Ibid fn7 at 122.
Ibid fn7 at 123.
On the Handling of Sexual Harassment Cases, issued in terms of section 203(2) of the Labour Relations Act 1995 at para 8.
Supra at para 8.3.
Chairman, Board of Tariffs and Trade, and others v Brencoand others 2001(4) SA511 (SCA) at para 37.
High-Level Committee investigation of allegations of harassment against women and other institutional malpractices in the African Union Commission (press release on outcome of the report dated 22 November 2018).
Bloomberg UN Reckons With #MeToo by Acknowledging Its Harassment Failures <https://www.dailymaverick.co.za/article/2019-01-17-un-reckons-with-metoo-by-acknowledging-its-harassment-failures/?utm_medium=email&utm_campaign=First%20Thing%20Thursday%2017%20January%202019%20Mi-Plan&utm_content=First%20Thing%20Thursday%2017%20January%202019%20Mi-Plan+CID_9a942eca1e6d87a571450c7371b9dde2&utm_source=TouchBasePro&utm_term=United%20Nations%20admits%20it%20has%20a%20harassment%20problem> accessed on 7 March 2019.
Report of the Equal Education Appointed panel of Enquiry to Investigate Allegations Against Doron Isaacs and Others and Review of the Proceedings and Outcome of the Equal Education Human Resources Subcommittee Hearing of 2011, dated 27 November 2018 (known as “the Satchwell Report”); and the Report for Equal Education, dated 10 December 2018 (known as “the Manjoo Report”).