Abstract
Sexual harassment – simply described as unwanted conduct or advances of a sexual nature – is one of the most atrocious acts of misconduct of relevance to the workplace. Not only will it likely have a serious impact on the business and the work environment due to the absences of the employee-victim, diminished productivity and damaged employment relationships, but it will undoubtedly have a personal impact on the recipient of the unwanted conduct or advances.
Every person has a set of inalienable human rights, recognised by various international and regional organisations in a multitude of instruments. Of particular relevance to this article is the right to equality, dignity, privacy and physical integrity. Considering the nature of sexual harassment and its various guises, cognisance should be taken of the fact that this conduct will in some or other way encroach on the mentioned universal human rights of the victim.
Depending on the type of sexual harassment committed, the conduct may constitute unfair discrimination based on sex, gender and sexual orientation. If it can be proven that sexual harassment was committed against another person in the form of sexual advances, grounded in the perpetrator’s inclination towards someone of a certain sex or sexual orientation, it would constitute an act of differentiation based on these grounds. This differentiation would then presumably amount to unfair discrimination against the victim, infringing that person's constitutional right to equality.
As the human rights protected in the Bill of Rights of the Constitution of the Republic of South Africa, 1996 are interrelated and interdependent, the infringement of the right to equality (section 9) through sexual harassment will inevitably have the consequence of impinging on the victim’s right to dignity (section 10). This is so since the value of dignity arguably undergirds the right to equality; encroaching on the right to dignity is therefore a natural corollary to the infringed equality rights. This being said, considering the nature of sexual harassment independently, it would very likely in itself impact on the victim’s dignity. Every human being is worthy of the respect and concern of others and should not be treated as a sexual object for personal entertainment. By reducing another person to such can cause them to feel violated, impure and insulted.
While recognising sexual harassment as a form of sex discrimination one must also be alive to the fact that this conduct may take on a more gender neutral character. In circumstances such as telling a dirty joke around the water cooler or displaying pictures or objects of a sexual nature for all to see, the perpetrator’s conduct is not necessarily fuelled by or dependent on the sex or sexual orientation of the victim(s). In this event the harassment does not amount to differentiation on any prohibited grounds and the relevance of equality and discrimination is negligible. However, this unconscionable conduct can still trespass on another’s personal domain and will likely give rise to feelings of oppression and diminished dignity, integrity and self-worth. Thus, despite the absence of discrimination, sexual harassment will still be capable of violating other relevant human rights.
Although sexual harassment can be committed by men and women alike, aimed at someone of any sex or sexual orientation, international and regional organisations have recognised sexual harassment as a form of violence against women, placing a barrier to equity and women’s full integration into society.
With reference to employment, at the 11th Session of the General Assembly in 1992 the United Nations (UN) expressed the opinion that women’s right to equality in employment would seriously be impaired if they were to be exposed to gender-specific violence in the workplace, such as sexual harassment. In addition the UN labelled sexual harassment as humiliating conduct which might constitute a health and safety issue for the victim. Clinical studies have found that there is a direct nexus between serious sexual harassment and various health problems, such as headaches, high blood pressure and dizzy spells. Considering sexual harassment as a health issue is consequently plausible.
The International Labour Organisation (ILO) and the African Union (AU) similarly identify sexual harassment as sex discrimination and draw an express link between sexual violence of this nature and the infringement of the right of respect for the victim’s dignity. The ILO in particular noted the human rights aspect in matters of sexual harassment and specified that this conduct undermines the equality of those exposed to the conduct, calling into question individual integrity and the well-being of workers.
From the above it is evident that the UN, ILO and AU all clearly acknowledge sexual harassment as a serious form of sex discrimination which has a bearing on the victim’s dignity and other personal interests.
Although some organisations recognise sexual harassment as being predominantly abuse committed against women, it should be reiterated that sexual harassment is not necessarily gender specific; anyone can consequently commit sexual harassment or experience their human rights’ being infringed by such conduct. Men and women of all sexual orientations should thus receive proper and equal protection in this respect. Ultimately, given the strong human rights element involved in sexual harassment cases, the organisations mentioned implore member states to frame appropriate policies aimed at eradicating sexual violence and abuse of this nature.
Upon scrutiny it seems that as a member state of these organisations, South Africa should aim to comply with the obligation to address and eradicate sexual harassment in the relevant context through its labour and equality laws. Such laws need to be strictly adhered to, and employers, victims and presiding officers alike ought to take proper cognisance of these comprehensive provisions in the endeavour to address and eliminate sexual harassment as a human rights violation. As a result, one can hope to maintain a workplace where all stakeholders respect one another's right to equity, dignity, privacy and integrity.
Not only does the Employment Equity Act 55 of 1998 (as recently amended) classify sexual harassment as a form of sex discrimination in section 6(3) of the Act, but a code of good practice on the handling of sexual harassment cases in the workplace was issued in terms of section 54 of the Act by the National Economic Development and Labour Council in 2005. This code provides guidance on the recognition and elimination of sexual harassment and aims to create legal clarity and uniformity in the approach to this very sensitive matter. Through consideration and application of this code the human rights protection offered to victims can be increased.
The code describes sexual harassment as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace. This fact has resonated in various cases over the course of the past decade, such as the Labour Appeal Court decision in Campbell Scientific Africa v Simmers 2016 37 ILJ 116 (LAC) and the Labour Court matter of University of Venda v M 2017 38 ILJ 1376 (AC). The code instructs that where it is to be determined whether sexual harassment in this context occurred, one should take into account whether the harassment is on the prohibited grounds of sex, and/or gender and/or sexual orientation, whether the conduct was unwelcome, the nature and extent of the sexual conduct, and the impact said conduct had on the employee-victim.
Employers should especially take care to address and prohibit quid pro quo harassment, victimisation and sexual favouritism. The practices mentioned exhibit a direct link with the “barriers to equity” which are consequential to certain harassing conduct. The offer or threat to influence employment circumstances such as promotion, training and benefits in the event of acceptance or rejection of sexual advances respectively is an embodiment of the violating conduct which the Employment Equity Act and the code seek to eradicate from the workplace. Premeditated conduct of this nature flies in the face of the right to equality and dignity of the recipient and ought to be expressly prohibited in workplace policies and penalised harshly if it should occur.
From the language used in the code it is evident that it was not the intention that any of the elements listed above should be viewed in isolation when investigating a claim of sexual harassment. It appears the code requires a balanced approach to the investigation in order to avoid a misinterpretation of the facts by the investigator, leaving the victim exposed to violation of his or her rights. If the circumstances amount to true sexual harassment which encroaches on the victim’s various human rights, the investigator will be able to ascertain as much in the event where the code is accurately applied.
Of great importance in the endeavour to serve the human rights of the employees with reference to sexual harassment is the role the employer has to play at enterprise level. Clear and strict workplace policies and practices in compliance with the code need to be adopted and consistently applied. Proper knowledge and comprehension of the nature and risks of sexual harassment in its various forms are paramount if such conduct is to be avoided and eradicated. As per the code, workplace policies should expressly identify sexual harassment as unfair sex discrimination which also violates a range of other human rights.
To optimise the impact of said policies, proper communication on its content should take place on a regular basis. This communication must include information to victims about the appropriate party to whom to report the harassment and which procedures are at their disposal. In this regard the employer has the obligation to provide an environment in which the employee-victim would feel safe to speak up and report untoward conduct.
Proactive steps are thus paramount in the creation of a workplace free of sexual harassment, but having appropriate reactive measures in place are similarly important to ensure that the victim enjoys the necessary protection and support after the fact. The truth remains, however, that the employer’s approach to the prevention and addressing of sexual harassment in the workplace ought to be influenced by the understanding that sexual harassment violates a multitude of the employee-victim’s human rights and should aim to protect the victim in this regard as far as possible.
Keywords: Constitution; dignity; Employment Equity Act; equality, human rights; sexual harassment
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