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Sexual harassment in the workplace

Sexual harassment in the workplace

 

1. Introduction

"Woman sues Naspers for R12m over sex pest".

In what has been described as one of the most extensive lawsuits about employers' responsibility to stamp out sexual harassment in the workplace, a former employee of Naspers has sued the company for R11, 8-million (The Star, 04 April, 2002).

The plaintiff’s lawyers asked the court to find that Naspers had a duty of care to create a working environment in which the dignity of its employees was respected, and to take all reasonable steps to preserve and protect the bodily integrity, psychological well-being, mental tranquillity of its employees, and to prevent them from being sexually harassed. Lawyers for Naspers have denied they owed such a duty of care towards the plaintiff.

The Code Of Good Practice On The Handling Of Sexual Harassment Cases states that:

(I) Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised, or fear reprisals. Implementing the following guidelines can assist in achieving these ends:

(a) Employers/management and employees are required to refrain from committing acts of sexual harassment.

(b) All employers/management and employees have a role to play in creating and maintaining a working environment in which sexual harassment is unacceptable. They should ensure that their conduct does not cause offence and they should discourage unacceptable behaviour on the part of others.

(c) Employers/management should attempt to ensure that persons such as customers, suppliers, job applicants and others who have dealings with the business are not subjected to sexual harassment by the employer or its employees.

(d) Employers/management are required to take appropriate action in accordance with this Code when instances of sexual harassment, which occur within the workplace, are brought to their attention.

The Act defines sexual harassment as:

(I) Unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome) and mutual.

(2) Sexual attention becomes sexual harassment if:

(a) The behaviour is persisted in, although a single incident of harassment

can constitute sexual harassment; and/ or

(b) The recipient has made it clear that the behaviour is considered offensive; and/or

(c) The perpetrator should have known that the behaviour is regarded as unacceptable.

In the light of the above information, we invite you, our readers, to take a friendly bet on who could win this case!

2. Examples of sexual harassment

# Non-Verbal or visual incidents

Some incidents of sexual harassment may appear to be innocent to the perpetrator. The use of computers and electronic communication has increased substantially with many employees having access to business e-mail accounts.

Flaming has become more apparent due to the type of e-mails being circulated in the workplace. Certain images, or jokes contained in e-mails, while seen as harmless by one employee may be found offensive by another, also some employees may find some screen savers offensive.

Such apparently non-deliberate actions can result in a claim of sexual harassment should the recipient feel offended. This is probably one of the most difficult areas of education for all employees when it comes to raising awareness about actions, which could lead to the interpretation of an act as sexual harassment. In order to deter such incidents employers are advised to implement an electronic communication policy to complement a sexual harassment, or dignity and respect at work policy.

# Verbal incidents

Traditionally, sexual harassment has been understood to involve more overt behaviour towards another because our vocabulary can traditionally contain messages of sexual harassment without our being conscious of it. This does not mean that certain incidents will not be considered as sexual harassment. For example a sexually suggestive joke, entailing negative sexual messages, told by a male employee to a group including women may make any of the recipients feel uncomfortable and result in the interpretation of the joke as sexual harassment.

Attempts to casually diffuse the situation by calling the perpetrator aside in the above situation can lead to very defensive behaviour on the part of the perpetrator. He may feel aggrieved by the fact that 'women want to be treated equally, so they should be able to take it' or feel that the company is asking 'too much in expecting him to change the way he has always behaved just because he works here'.

Such a reaction on the part of perpetrators strongly indicates that they cannot appreciate the meaning of sexual harassment and need to be warned before their behaviour results in serious incidents. A method of deterring such attitudes would be to promote a culture of dignity and respect at work in an organisation.

Language used by some employees may also be interpreted as sexual harassment such as continually referring to a colleague of the opposite sex as love, dear or pet. Such language should be dissuaded and highlighted in policies as potentially offensive.

# Physical

Physical sexual harassment is probably the most easily recognised offensive behaviour. Some people form habits of placing their hands on the shoulder of another or leaning over a person when talking to them. While appearing innocent to the perpetrator, it may not be welcomed by the person on the receiving end who may feel their personal space is being threatened and could feel that the act is sexual in nature.

Equity legislation provides that it is the victim who decides what type of behaviour is harassment regardless of whether the perpetrator considers it to be innocent.

The most offensive types of physical sexual behaviour are those of the unwelcome variety, such as fondling, kissing, sexual assault or rape. These categories would most likely lead to the most severe level of discipline available and probably dismissal in the more serious cases. Victims of unwelcome fondling or kissing may find it is difficult for them to prove their case as the perpetrator usually makes their advances when the two are alone.

3. Myths about sexual harassment

There are many misconceptions regarding the occurrence of sexual harassment and far from treating it as a serious problem, it is continually supported by a number of myths.

1. Sexual harassment is nothing more than the normal and natural sexual interest existing between women and men. If they work together, innocent flirtation is inevitable between men and women.

2. Women who are harassed have clearly asked for it by the way they dress and behave. Any woman who is not interested can easily say so.

3. Work needs to be brightened up with jokes and games. Women who do not appreciate a laugh are spoilsports or suffer from sexual inhabitations.

These myths are commonplace in many organisations, and because of this many employees may have feelings of guilt about their reaction to the behaviour and ashamed to tell anyone in case they are seen as having encouraged the harasser.

The introduction of the Employment Equality Act, 1998 was the first piece of legislation to raise employee's awareness of the issue of sexual harassment and provide grounds for redress. This Act was introduced with the aim of promoting equality in the workplace and to make further provision in relation to harassment and discrimination in the workplace.

Sexual harassment has little to do with sexual attraction, and has more to do with abuse of power than anything else It seems that women seem to be the main victims in cases of sexual harassment. Sexual harassment affects the whole company, not just the victim and perpetrator. Although the Employment Equity Act aimed to increase people's awareness of sexual harassment many people would probably fail to recognise sexual harassment in the workplace.

4. Effects of workplace sexual harassment

The perpetrator will not always be male or senior to the victim. Men have sexually harassed men, and women have sexually harassed men and women. In addition, colleagues at the same level have been perpetrators of sexual harassment. Non-employees can also be perpetrators, for example customers, suppliers and clients. Employers should place sexual harassment statements in public places in the workplace to be viewed by all visitors.

The influence of the employer can reach outside the workplace. An example of this is when conferences may take place away from work, or working at home. Where a manager/supervisor makes advances to direct reports at an offsite work conference/event it is still constituted as an employment situation, even if the act takes place after normal working hours. The two people are together representing the company and the work relationship still exists.

The most common defence and excuse used by perpetrators in these situations are that the victim 'led them on' or 'was asking for it' or 'had it coming to them for a long time'. These are totally unsatisfactory defences for incidents of physical or sexual harassment and the perpetrators should be severely disciplined even in cases where they believe that they have done nothing wrong. Otherwise the company cannot demonstrate their commitment to a workplace free from sexual harassment and a workplace supportive to those who report such incidents.

Fear of embarrassment and humiliation from co-workers, or an employer, can often be more distressing than the incident itself and prevents employees from speaking out. The most common reaction from victims of sexual harassment is to suppress inner feelings and try to ignore it. Employees also try and deal with the harassment by: (a) Taking time off work; i.e. absenteeism. (b) Transfer to another job (c) Leave the Company (d) Complain and risk retaliation (e) Go along with the harassment for fear of retaliation.

Victims of sexual harassment pay a double penalty. Not only do they suffer the actual harassment but should they change or transfer jobs this can have a negative effect on their long-term job or career prospects. There are many benefits associated with length of service such as promotion, sick pay entitlements, pension rights or training opportunities, being forced to sacrifice these benefits is another detrimental effect of being a victim of sexual harassment. When ignored the majority of cases of sexual harassment tend to worsen, and while most victims show no outward signs that they are being harassed, many experience anger, frustration and embarrassment. Sexual harassment can also be a major contributor to workplace stress.

5. What to do if sexual harassment is suspected

What can an employer do where they suspect the occurrence of sexual harassment?

If an employer suspects that an employee is a victim of sexual harassment, or if an employee confides in a manager that they are being sexually harassed, then there are a number of things an employer should be aware of:

>> Every employer should have a policy in place to deal with sexual harassment. An environment free from sexual harassment is a condition of employment, and so it is the duty of the employer to provide it. Under the Employment Equity Act the employer may be liable if they were aware of the sexual harassment and failed to take action.

>> The employer should place notices throughout the premises, which detail the company's commitment to preventing the occurrence of sexual harassment. A company policy on sexual harassment should set out what the company considers to be the main types of sexual harassment and the penalties that relate to it, for example sexual harassment could be listed as gross misconduct in the disciplinary policy, which may result in summary dismissal.

>> It is important however to remember that it is the employee who ultimately decides what behaviour is acceptable, not what the perpetrator or colleagues believes is acceptable, and for this reason the list given in any policy would be non exhaustive.

# In the short term:

>> The first thing to do when a case of sexual harassment is reported or suspected is not to force the victim of the harassment to officially report it. Make the employee aware of the options that are open to him/her. It is important to remember that the employee has already been a victim of another persons unwanted actions. By forcing them to make the complaint official you may be compounding the problem.

>> The employee may feel more comfortable in reporting the problem if they have conclusive evidence that the harassment occurred. The employee might choose to confront the employee directly or write them a letter, which is a more informal approach. This may help them think through their evidence, compose themselves and help them select an option for action. Studies by the Sloan School of Management in the US have statistically proven that sending or hand delivering such letters have led to a cessation of the harassment. It also provides more evidence if the harassment continue.

>> Inform the employee of your concerns regarding the harassment but do not dismiss their worries.

>> The employee should be able to ask their employer, off the record and without providing the name of the offender, for a harassment prevention effort, such as harassment training or the distribution of leaflets on sexual harassment. This option could trigger an apparently routine training program in the relevant department. This could lead to the harassment being stopped at no cost to anybody's privacy. Remember to investigate the issue, not the employee.

>> If the claim is legitimate the employer must convince the employee that the company policy exists to protect them and that there will be no retaliation, i.e. the complainant will not incur any kind of reprisal as a result of the claim. Employees may feel that by reporting the harassment that any investigations may hamper their career progression, advancement and that any investigation is one employee's word against another. It is important to remember at all times to respect the privacy of both the victim and the perpetrator and given the sensitivity of the issue, employers must guarantee confidentiality when carrying out any investigation.

>> If the employee refuses to make an official complaint then the employer should ask the employee to provide a memo stating that he/she has considered all options and rejected the company's offer for assistance. If this is not an option then the employer should write his/her own memo to that effect and place it in the employees file. This will assist in protecting the company in the future should a possible constructive dismissal arise.

>> Having offered the employee advice, made them aware of their options and tried to help the employer must respect any decision, which the employee makes.

>> If having considered all options, the employee decides that they wish to make an official complaint of sexual harassment then the following is a guide to the procedure, which should be followed.

# Formal procedure

>> If possible the victim, or a witness to the incidence of harassment, should approach the perpetrator and ask him/her to stop. If this is not possible, or if having been approached, the perpetrator fails to stop, then the victim should contact their supervisor, or other appropriate person whom they fell comfortable dealing with.

>> All complaints should be investigated and written records kept of all interviews and investigations.

>> Parties to the issue will have the option to have a colleague or friend present at all interviews. 4. Penalties may differ depending on the severity of the harassment, but the perpetrator will be subject to disciplinary action up to and including summary dismissal.

>> If it is appropriate that one of the parties be transferred, the complainant will not be transferred unless he/she specifically requests such action.

>> Call meetings to discuss the harassment, informing all employees that the company will not tolerate it. The Company can use the occurrence of harassment to attack the problem and raise company consciousness about it. When such investigations are taking place they must be confidential and unknown to other employees.

# In the longer term

>> In broader terms employers needs to examine why the problem has occurred in the first place. Perhaps if the company had an effective approach to dealing with sexual harassment then the problem would never have happened.

>> Is the company harassment policy clear enough? Has it been communicated to all employees? Is the policy enforced?

>> In the large percentage of cases, the alleged harasser is not aware that their behaviours are offensive or unwelcome and the majority of these claims can be settled by an apology and a promise by the harasser to correct his or her behaviour. For this reason it is important that all employees are aware of exactly what the company defines as sexual harassment. ·

>> The company should look at the option of offering off the record counselling to help the employee deal with the problem.

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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