Recognising and dealing with sexual harassment in the workplace

GAIL BLACHER

While you might believe your story is too trivial to talk about, once you bring up the subject you’ll be surprised at the number of women with a “do you know what happened to me” tale to tell.

According to our labour laws and guidelines, sexual harassment is defined as any “unwanted conduct of a sexual nature” and includes “all unwelcome physical, verbal or non-verbal conduct”.

Examples can range from unsolicited touching, to seedy jokes, comments with sexual overtones or that refer to a person’s body or sex life, indecent exposure, wolf whistling, displays of explicit pictures and sexual favouritism.

Even “trying your luck” has to be held to be sexual harassment.

Employers are legally bound to create and maintain an environment in which the dignity of employees is respected.

Employers have a duty of good faith towards their employees, including a duty to provide a safe working environment.

Employers should take decisive action in circumstances where they receive complaints of sexual harassment, but must always ensure that the rights of both the complainant and the person accused of such conduct, are respected in the process.

Employees who engage in sexual harassment should expect to face the harshest penalties under the law.

Checklist

Don’t Ignore The Harassment.

Don’t become a victim. If you believe you are the subject of sexual harassment in the workplace, don’t ignore the problem as doing so will not result in it going away. Talking about sexual harassment can be uncomfortable, but you can empower yourself by following the correct procedure within the company.

Make It Clear To The Harasser That The Conduct Is Unwelcome.

An essential element of a sexual harassment claim is that the conduct must be “unwelcome”. Harassers often contend that their victims welcomed the behaviour and that the behaviour was consensual.

Sexual harassment is generally behaviour that is an impairment to dignity and must be sexual in nature and includes physical – such as touching – assault, verbal – such as comments or statements or even e-mails and non-verbal such as gestures or pictures.

It can be difficult or even frightening to object, so either you or another person on your behalf must tell the harasser. If you do so in writing, as in an e-mail, you will have proof that the conduct was unwelcome if the harassment doesn’t stop.

Keep a log from the start.

Keep any e-mails, memos, gifts, or other tangible evidence from the harasser. And keep a log or notes of any incidents or other information that may be relevant to your concerns about sexual harassment.

Lodge a grievance as soon as possible.

Many companies have a sexual harassment policy in place. It may be difficult and feel frightening and intimidating to report the incident(s) so you may seek the intervention of another person.

If the company has no policy in place, you should report the matter to the employer directly or the HR or a colleague who will inform the employer.

You will then have proof that the employer is aware of the harassment and the employer is then bound to take action against the harasser.

Will I lose my job?
Any adverse or negative reaction against you, such as threats of job loss, negative performance evaluations or pay cuts for bringing a sexual harassment claim is an unlawful offence. If this occurs, report this to the person who has the authority to address the issue or is handling your sexual harassment complaint.

Keep in Mind:

According to the law employers should have specific sexual harassment policies that are freely available and are often displayed. The employer is legally bound to investigate the incident as well as retain the confidentiality of the complainant. If your employer does not have a sexual harassment policy and procedure, complain to someone you believe has the authority to address the problem.

Don’t Resign from your Job.

Sexual harassment is against the law. You do not have to endure such victimisation or a hostile environment. Don’t resign, as this will not be to your benefit. It is important to give the employer an opportunity to deal with the issue.

Sexual Harassment Law.

A labour lawyer can advise you about what the law considers to be sexual harassment; counsel you about how to handle the situation such as assisting you with your grievance; deal with your employer; ensuring that there is no retaliation; and retaining your position in the company; and advise you on your various options.

They can also advise you about your legal options such as taking the matter to the CCMA or negotiating a severance package or a settlement agreement.

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Gail Blacher has a BA LLB degree from Wits with a master’s degree in labour law from University of Johannesburg. She is a director of a company which specialises in labour issues.