Sexual harassment in the workplace is a serious concern, especially if the right policies aren’t in place. Let’s take a closer look at what sexual harassment is and what South African laws are regarding it in the workplace.
“Sexual harassment in the workplace” is defined as “a form of unfair discrimination based on the grounds of sex, gender, and/or sexual orientation”. It is unwanted conduct of a sexual nature.
Sexual harassment can be determined by behaviour that makes another feel uncomfortable, which includes but is not limited to unwelcome sexual jokes/comments, inappropriate questions regarding one’s personal sex life, touching, whistling, gestures of a sexual nature, staring offensively, asking for sex.
How to Deal with Sexual Harassment Problems
The best reference to dealing with complaints of sexual harassment in the workplace is the Labour Relations Act. This act clearly outlines an employee’s legal rights and the best practice to follow when a claim is made.
What are your Rights?
As an employee, you can ask your employer to help you deal with a sexual harassment matter. Knowing your rights is the first step. You have the right to:
- Dignity and respect in the workplace,
- Report sexual harassment safely,
- Equal treatment regardless of your race, gender, sexual orientation, and HIV status,
- Due process carried out to settle your claim seriously and with discretion.
I’ve Been Sexually Harassed | What to do
There are 2 ways to deal with the situation: formally and informally. We cover both options and processes below for you to consider.
Informal Way to Deal with Sexual Harassment
This process avoids formal workplace complaints and can include the following attempts/actions:
- Talking to the abuser and requesting a behaviour change.
- Confronting the abuser with a third party to mediate.
- Compose (and keep a copy thereof) a document to the abuser stating that you feel uncomfortable and why and requesting a change. Have a witness or proof of delivering the letter.
- As a third party to approach the abuser and request a change of behaviour.
Formal Way to Deal with Sexual Harassment
This process involves formally lodging a complaint against the abuser by means of company process or CCMA:
- Ensure that the grievance is lodged with the abuser’s details attached and that the correct steps are followed.
- Reference time frames for investigation purposes.
- Approach the CCMA for assistance.
The Responsibility of the Employer / Investigating Team
It is vitally important that the case is investigated without disadvantage to either party. No prejudice should be shown during the process. If the accused is found guilty, the necessary steps must be taken in strict accordance with the Labour Relations Act.
To ensure that the business is compliant with labour and sexual harassment laws, it is important to make clear the stance the company has in terms of sexual harassment and the associated consequences. Ensuring that employees are educated on sexual harassment and what is and is not acceptable in the workplace should form part of the employment agreement. All employees should also know the process to take to lodge a complaint and what their rights are.
What if a Resolution Cannot be Met?
There are times when formal and informal attempts at resolution just don’t work. When this happens, the complaint can be taken further with the CCMA for conciliation. This must be done within 30 days of the dispute being brought to light. If either party finds the outcome unsatisfactory from the CCMA, they can take it further, to the Labour Court. This must be done within 30 days of receiving the dispute certificate provided by the CCMA.
Avoid Sexual Harassment Claims in the Workplace
There are many things that an employer can do to minimise sexual harassment problems in the work place. Some include thoroughly investigating staff members prior to hiring, ensuring that all staff are well aware of the company policies, and that sexual harassment clauses are written into employment agreements. Need more assistance and advice with a CCMA claim or harassment disciplinary process in the workplace? Contact us today!