Sexual Harassment in the Workplace PDF

Sexual Harassment Workplace Discrimination  Defining sexual harassment Sexual harassment consists in the sexualisation of an instrumental relationship by introducing sexist or sexual remarks, requests or requirements in the context of a formal power differential (Fitzgerald 1990) A signi...

Sexual Harassment Workplace Discrimination  Defining sexual harassment Sexual harassment consists in the sexualisation of an instrumental relationship by introducing sexist or sexual remarks, requests or requirements in the context of a formal power differential (Fitzgerald 1990) A significant factor in the determination of sexual harassment cases is the power differential between the harasser and harassed Power differential and/or woman’s/‘sensitive’ employees reaction are critical variables  The conduct is unwanted/unwelcome by the person to whom it is directed and who experiences negative consequences or a negative response to the conduct The conduct can be verbal, non-verbal or physical It impairs the dignity of the affected person and/or creates a hostile working environment It may or may not have an element of coercion or abuse of power by the perpetrator  Grobler v Naspers (2004) (LC) Vicarious liability – is the misconduct sufficiently closely connected to the employment relationship i.e is risk created or increased by the relationship? Substantial power of the manager has an inherent risk of sexual harassment. Therefore S’s conduct was foreseeable + courts were constitutionally bound to extend vicarious liability to include sexual harassment to promote s 10 and 12 (human dignity and freedom and security of the person) Media 24 v Grobler (2005) (SCA) Legal duty of care toward employees Employer owes a common law duty to its employees to take reasonable care for their safety. This duty extends beyond physical safety and includes psychological harm caused by e.g. sexual harassment ‘Unwanted sexual advances in the employment sphere are not a rare occurrence … It creates an intimidating, hostile and offensive work environment. … The psychological effect on sensitive and immature employees, both male and female, can be severe, substantially affecting the emotional and psychological well-being of the persons involved. …Fear of consequences of complaining … oftencompels the victim to suffer in silence’  EEA 55 of 1998 In terms of EEA 55 of 1998 s 6(3) Harassment is a form of unfair discrimination – it impairs the achievement of substantive equality in the workplace Harassment is prohibited on any one of the grounds listed in s 6(1) e.g. sex and/or gender and/or sexual orientation. It undermines human dignity, privacy and the integrity of the victim  In terms of the s 60(3) EEA an employer is liable for sexual harassment by an employee only if it failed to take steps to halt the conduct  Code of Good Practice on Handling SH The first Code was issued in 1998 and then amended in 2005 Until December 2018 employers had to apply both Codes since the 2005 codes introduced more factors on what constitutes SH and guidelines in determining whether an act of sexual nature was SH, placing more onus on ERs to take steps to have proactive SH policies. But the 2005 did not repeal the 1998 code – both had to be applied. On 19 December 2018 the Minister of Labour repealed the 1998 code  Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace Purpose is to eliminate workplace sexual harassment Sets out procedures to deal with SH and prevent its recurrence Promotes developing policies that create a workplace free of SH Test for SH ‘unwelcome conduct of a sexual nature …’(s 4): whether it is based on a listed ground e.g. sex etc.; whether it was unwelcome; the nature and extent of the conduct; and the impact of the conduct on the employee.  Code of Good Practice – Factors to establish SH (s 5) Unwelcome conduct (s 5.2) – different ways to indicate that s conduct is unwelcome including non-verbal e.g. walking away or silence; previous consensual participation in s c does not necessarily mean the s c continues to be welcome complainant may seek the assistance of another co-worker, superior or hr or friend if they have difficulty telling the perpetrator that the s c is unwelcome Code of Good Practice – Factors to establish SH (s 5)- Nature of the conduct (s 5.3.1) Includes unwelcome physical, verbal or non-verbal: physical contact ranging from touching to sexual assault (it includes strip searching by opposite sex or in their presence) verbal includes innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, enquiries into sex-life, whistling and sending texts of a sexual nature non-verbal includes gestures, indecent exposure and display or explicit pictures Code of Good Practice – Factors to establish SH (s 5)- Nature of the conduct (s 5.3.2) Victimization, quid pro quo harassment & sexual favouritism: Employee victimized or intimidated for failing to submit to s advances Where ER influences or attempts to influence EE’s employment circumstances by coercing the EE to surrender to s advances – quid pro quo – e.g. favouritism where an EE is rewarded for responding to s advances A single incident of unwelcome s c may constitute SH (s 5.3.3) Code of Good Practice – Factors to establish SH (s 5)- Impact of the conduct (s 5.4) Conduct should constitute an impairment of EE’s dignity, taking into account: circumstances of the EE; and The respective positions of the EE and the perp in the workplace Guiding principles (s6) – workplace environment should be such that EEs feel that grievances will be trivialized or ignored, or fear reprisals – standards of workplace conduct should not cause offence and unacceptable behaviour should be discouraged; action should be taken for instances  Simmers v Campbell Scientific Africa (Pty) Ld and Others 8 BLLR 815 (LC) – the issue Three colleagues on work trip to Botswana had dinner together at restaurant Simmers said to M., “Do you want a lover tonight?”. She made it clear that she did not and that she had a boyfriend. He responded, “if you change your mind during the night, come to my room”. She did not. He did not pursue it. “Mere sexual attention or sexual harassment”? “… single incident of unwelcome sexual conduct can constitute sexual harassment. But it is trite that such an incident must be serious. It should constitute an impairment of the complainant’s dignity, taking into account her circumstances and the respective positions of the parties in the workplace. This nearly always involves an infringement of bodily integrity such as touching, groping, or some other form of sexual assault; or quid pro quo harassment … Once M. made it plain to Simmers that it was not welcome, he backed off” (para 29).  Simmers LC decision “Misunderstandings are frequent in human interaction. An inappropriate comment is not automatically sexual harassment … Simmers’s comment was sexual attention, crude and inappropriate as it may have been. It was a single incident. It was not serious. It could only have become sexual harassment if he had persisted in it or if it was a serious single transgression. Add to this the fact that there was no workplace power differential, the parties were not co-employees, and the incident took place after work. The advance was an inappropriate sexual one, but it did not cross the line to constitute sexual harassment. It certainly did not lead to a hostile work environment; in fact, M. left for Australia shortly after the incident, and it is unlikely that the parties will ever work together again – they do not even work for the same employer” (para 31). LC found that he was “trying his luck” and once-off incident  CSA v Simmers – LAC decision LC erred in finding that the advances were inappropriate sexual attention and not harassment, were not serious and did not impair M’s dignity LAC held “unwelcome & inappropriate advances were directed by S at a young women close to 25 years his junior whose employment had placed her alone in his company and that of Le Roux in Botswana. Underlying such advances, lay a power differential that favoured S due to his age and gender. M’s dignity was impaired by the insecurity caused … and by her clearly expressed feelings of insult” (para 27).  CSA v Simmers – LAC decision “[S]exual harassment by older men in positions of power has become a scourge in the workplace” (para 33) Prohibition against sexual harassment targets deplorable expressions of misplaced authority by supervisors towards their subordinates - Gaga v Anglo Platinum Ltd 3 BLLR 285 (LAC) para 41 Even though S was not a senior to M his conduct was “founded on the pervasive power differential that exists in our society between men and women (CSA v Simmers para 33) One off incident does not negate the harassment – it still violated M’s right to substantive workplace equality – impaired M’s dignity & integrity (para 33) Pillay v SA Post Office (2012) (LC) – mens rea and touchy mannerism Perp argued that he did not have intention to commit SH because he wasn’t aware that he was touching the complainants in a sexual way – argued that he had a touchy mannerism i.e. he generally touched people. LC held that the ‘lack of intention … is not established by the more say-so of the perpetrator. Whether he had the necessary intention to SH … must be objectively assessed.’ ‘…touching her inappropriately is not justified or excused by the consumption of alcohol.’  Motsamai v Everite Building Products (2011) LAC - appropriate punishment Appellant dismissed for SH to female colleagues, commissioner order reinstatement stating that dismissal was too harsh. LC re-imposed the dismissal. LAC held that SH went to the root of the victim’s integrity as a human being, the victim could therefore not be forced to undergo mediation, the victim has the choice to refuse conciliation (mediation). The LAC stated that ‘[s]exual harassment is the most heinous misconduct that plagues the workplace’ The court rejected the finding that showing female condoms to his colleagues and making the sexual innuendo that ‘by and mouth I will be nice’ after showing the condom and asking her to bring it to him, was ‘childish’. The LAC found that it was a very serious misconduct – not a mere display of childishness.