THE LAW ON SEXUAL HARASSMENT.

The law on sexual harassment.

The Labour Act

The Labour Act [Chapter 28:01] provides for sexual harassment as an unfair labour practice by an employer or any other person. In terms of s 8(g) and (h) an employer commits an unfair labour practice if he, among other things:

·        demands from an employee sexual favour as a condition of improving the remuneration or other conditions of employment of the employee;

·        engages in unwelcome sexually determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials at the workplace.

Mbatha vs Zizhou  HH 675/21

“It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her. It turns her into an object of sexual gratification. It strips her of her right to personal security as contemplated by s 52 and s 53 of the Constitution. Section 52 says every person has the right to bodily and psychological integrity, which includes, among others, the right to freedom from all forms of violence from public or private sources.”

McGregor v Public Health & Social Development Sectorial Bargaining Council & Ors CCT 270-20.

“Sexual harassment strips away at the core of a person’s dignity and is the antithesis of substantive equality in the workplace.  It also promotes a culture of gender–based violence that dictates the lived experiences of women and men within public and private spaces and across personal and professional latitudes.

Furthermore, we know that “[a]t its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace”. Indeed, between Dr McGregor and his victim crouched an indisputable power imbalance that has to be understood as underpinning this entire matter.  Dr McGregor was thirty years the victim’s senior, and in a position of authority.  Not only does the power imbalance tip according to the professional positions, but it topples in terms of gender at the intersection of age.  The Labour Court itself noted that it is impossible to “imagine any circumstances where given the nature of the relationship [between them], [Dr McGregor’s] conduct vis-à-vis an intern would be appropriate”  And, it went on to state that the conduct would have been “grossly unacceptable” no matter who it was directed at, but “[t]he disparity in age and seniority is clearly an aggravating factor”.

Courts have in the past emphasised the importance of considering such power dynamics in sexual harassment matters.  In Campbell Scientific Africa, the Court was dealing with unwelcome and inappropriate advances directed at a young woman twenty-five years the perpetrator’s junior, whose employment had placed her alone in his company.  It held that “underlying such advances, lay a power differential that favoured Mr Simmers due to both his age and gender”.  In Gaga, the Court noted that the victim “was placed in the invidious position of being compelled to balance her sexual dignity and integrity with her duty to respect her superior”. Indeed, many years ago, the erstwhile Industrial Court also drew attention to the dilemma facing junior employees subjected to sexual harassment.  It said:

“[Sexual harassment] creates an intimidating, hostile and offensive work environment. . . .  Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position.  How should they cope with the situation?  It is difficult enough for a young girl to deal with advances from a man who is old enough to be her father.  When she has to do so in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises . . . her position is unenviable.  Fear of the consequences of complaining to higher authority . . . often compels the victim to suffer in silence.”

Truly, the harshness of the wrong of sexual harassment is compounded when it is suffered at the hands of one’s supervisor.

Not only was Dr McGregor at all times oblivious to the power dynamics that undergirded his professional relationship vis-à-vis the victim, he has also vacillated between denying outright that his conduct constituted sexual harassment and flippantly downplaying the significance thereof.  Furthermore, instead of showing remorse, Dr McGregor has attempted to impugn the credibility of the victim as a witness.  His refusal to recognise his wrongdoing adds insult to injury, and his attack on the victim’s credibility is salt to the wound.”

Gaga v Anglo Platinum Ltd and Others (JA 44/10) [2011] ZALAC 29; [2012] 3 BLLR 285 (LAC) (20 October 2011)

“The rule against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinates. The fact that the subordinate may present as ambivalent, or even momentarily be flattered by the attention, is no excuse; particularly where at some stage in an ongoing situation she signals her discomfort. If not the initial behaviour, then, at the very least, the persistence therein is unacceptable. 

The failure by the complainant to take formal steps against the appellant should be construed likewise in the light of the personal and power dynamic in the relationship, which probably operated to inhibit the complainant; keeping in mind that she notably changed her stance at the time of her resignation once she was apprised of the policy. It would be unfair to the employer were the appellant to be allowed to avoid liability for sexual harassment on the basis of the ignorance of his victim of the steps required to be taken in the policy and her hesitation in taking them. The complainant’s evidence looked at as a whole suggests that she was uncertain about how to deal with the situation. Her conspicuous vacillation was an understandable response in a youthful and junior employee. She was placed in the invidious position of being compelled to balance her sexual dignity and integrity with her duty to respect her superior; which obligation no doubt was appreciably compromised by his behaviour.

Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (JR641/2016) [2018] ZALCJHB 72

“The lessons coming out of the global anti-sexual harassment movements mentioned elsewhere in this judgment are that the so-called ‘victims’ of sexual harassment react to their own ordeals and circumstances differently, and in most instances, long after the fact. Astute lawyers will always attack the credibility of complainants because of the time lapses between the incidents and when they get reported, and the inability to proffer specifics or corroborating evidence. There is of course always a danger in accepting at face value that an incident took place simply because it was reported immediately thereafter. The consequences could be dire for both the accuser and accused if the allegations are found to be without merit. The stigma of being a sex pest remains forever even if, in the end, the allegations are found to be unsubstantiated. There is however an even greater danger when it is not accepted that the incident took place because the complainant took long to report it, or that he or she cannot recall details with  clarity. Without vindication because of such technicalities, the trauma persists indefinitely for the complainant.

 Common sense, however, and a bit of appreciation of the human mind dictate that one must look deeper and objectively into the reasons why incidents of sexual harassment are not immediately reported. This examination again has to do with how human beings react differently to the same or a similar set of circumstances. Depending on the nature and character of the individual complainant, in some instances, and immediately when an incident takes place, the harasser may be told in unequivocal and impolite terms to cease and desist the conduct, and to find the nearest cold shower. At best, the incident may even be reported immediately. Of course, this would be the ideal scenario, and the workplace would be free from sex pests and harassers if every incident was to be dealt with in that manner.”

Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) at para [20] 

Sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim: how does he/she perceive it, and whether or not the perception is reasonable…”

Employment Equity Act 55 of 1998 (South African Statute)

This South African statute provides useful clarification of the law regarding sexual harassment and unwelcome sexual conduct at the workplace. It provides as follows:

 Unwelcome conduct

   5.2.1        There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.

   5.2.2        Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.

   5.2.3        Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.

5.3       Nature and extent of the conduct

   5.3.1        The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct.

   5.3.1.1        Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex.

   5.3.1.2        Verbal conduct includes unwelcome 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, inappropriate enquiries about a person's sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text.

   …

   5.3.3        A single incident of unwelcome sexual conduct may constitute sexual harassment.

Conclusion

In the words of  KHAMPEPE J in McGregor v Public Health & Social Development Sectorial Bargaining Council & Ors CCT 270-20

“Sexual harassment is the most heinous misconduct that plagues a workplace. Although prohibited under the labour laws of this country, it persists. Its persistence and prevalence ‘pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms … and non-sexism’. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth, striking at the root of that person’s being.”