We discuss the laws that protect you from sexual harassment at work and the process to follow when reporting this misconduct and lodging a complaint with your employer.
Sexual harassment is an unwelcome sexual advance or unwelcome request for sexual favours. It is also unwelcomed physical, verbal or non-verbal behaviour of a sexual nature.
In terms of the Employment Equity Act 55 of 1998, harassment of an employee is a form of unfair discrimination and it is prohibited on any one or a combination of grounds of unfair discrimination listed in the Act. Sexual harassment is a form of unfair discrimination based on the grounds of sex, gender or sexual orientation. It has been characterised by the Labour Appeal Court as “the most heinous misconduct that plagues a workplace”. Sexual harassment also results in losses for employers both in terms of productivity and efficiency and has a detrimental effect on their brand and reputation.
The intentions of the harasser doesn’t matter. If the behaviour leads you to feel that it was inappropriate, offensive, intimidating or humiliating and affects your human dignity, then it’s considered sexual harassment.
For behaviour to be considered sexual harassment, it must be of a sexual nature and can be physical, verbal, non-verbal, quid pro quo or sexual favouritism. This includes, but is not limited to:
It is sexual harassment if a person in a position of authority wants to exchange any job benefit for sexual favours and is only advancing the careers of those who respond to their advances.
COVID-19 has altered the way that we work, moving a lot of our jobs into the virtual world. Remote work has introduced a new form of sexual harassment which we must be made aware of. Working from home tends to decrease formality and hinders workplace professionalism and often accountability because the line between what is and isn’t appropriate can become blurred. Remote work sexual harassment includes sexual comments made during work video calls and comments on someone’s appearance in a way that makes them feel uncomfortable. Social media stalking and inappropriate messages create a hostile and unsafe working environment.
Your rights are set out in the Labour Relations Act, the Employment Equity Act and in a set of guidelines issued by the Department of Labour called the Code of Good Practice on the Handling of Sexual Harassment Cases (The Code).
You have the right to make a formal or informal complaint depending on the circumstances and what you are comfortable with. You might also decide to lodge your complaint confidentially. It is against the law for your company to do nothing once you have reported sexual harassment. An informal complaint would see your employer bring the complaint to the attention of the harasser, but there will be no investigation to follow. There would be a discussion which might be followed by education on what is considered sexual harassment.
A formal complaint will involve an investigation followed by action taken against the harasser. During the complaint process:
If you are unhappy with the steps taken by your employer, you can refer your case to the CCMA (The Commission for Conciliation, Mediation and Arbitration). You can also lay a criminal charge of sexual assault against your harasser.
Legal&Tax is your companion. Our experts will advise you on how to report sexual harassment and what steps to follow when lodging a complaint or laying a criminal charge. Contact us for more information