Employers cannot afford to ignore allegations of sexual harassment. The dangers of doing so have been reverberating around the world since October 2017, when sexual harassment allegations against Hollywood film producer Harvey Weinstein surfaced and the #MeToo campaign went viral on social media.
These developments have awakened many to the magnitude and prevalence of sexual harassment. According to an NBC News and Wall Street Journal poll conducted on the #MeToo campaign, aimed at exposing sexual harassment, 48% of women have experienced this form of abuse at the workplace. This is not to say that sexual harassment affects only women; it can and does affect both genders.
Many of the sexual harassment allegations triggered by the #MeToo campaign relate to public figures or entities, but sexual harassment also occurs in the typical working sphere. Employers are well advised to be aware of the steps they are required to take when incidents of sexual harassment take place.
The many forms of sexual harassment
Sexual harassment in the workplace occurs when a person is subjected to unwelcome, uninvited behaviour they find offensive, humiliating, embarrassing or intimidating, and/or which adversely impacts on his or her employment environment or opportunities in the company. Sexual harassment can take many forms - physical contact, verbal comments, jokes and gestures, the display of offensive material and other behaviour. It can consist of repeated incidents or importantly, even a single incident.
South African law is quite progressive in its firm stance against sexual harassment. The Employment Equity Act prohibits sexual harassment and categorises it as unfair discrimination on the basis that it undermines a person’s dignity, privacy and integrity and encroaches on the right to enjoy human rights at work. The Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, published in terms of the Employment Equity Act, aims to eliminate sexual harassment in the workplace by providing appropriate procedures to deal with it and prevent its recurrence.
Code imposes extensive obligations
The Code does not stop at requiring employers to refrain from allowing acts of sexual harassment against employees, customers, suppliers, job applicants and others who have dealings with the employer. It also obliges employers to prevent sexual harassment by adopting a sexual harassment policy, which should be communicated to all employees. This policy should set out procedures for dealing with sexual harassment, as well as the appropriate actions to be taken in instances of harassment.
The Code also places additional obligations on the employer when sexual harassment has been brought to its attention. These obligations include:
• consulting all relevant parties;
• taking the necessary steps to address the complaint;
• taking the necessary steps to eliminate the sexual harassment;
• advising the complainant of the procedures available to deal with the sexual harassment;
• offering the complainant confidential advice, assistance or counselling;
• considering granting additional sick leave if the complainant requires trauma counselling and has exhausted his or her sick leave as a result of the trauma; and
• ensuring that grievances about sexual harassment are handled so as to keep the identities of the people involved confidential.
The risks of failing to address allegations
There are significant risks for an employer that does not appropriately address allegations of sexual harassment, or fails to address them at all.
For example, the complainant may resign and claim constructive dismissal, alleging that the employer made the person’s continued employment intolerable. In this event, the employee may be awarded up to 12 months’ remuneration. In addition, the employee may allege a discriminatory dismissal and the employer may find itself at risk of a compensation award of up to 24 months’ remuneration.
What’s more, besides suing the party complained of, the complainant may also sue the employer if it fails to take the necessary steps to deal with the allegations. In this event, the employee may be awarded compensation that is just and equitable in the circumstances, as well as damages for out-of-pocket loss for any past and future medical expenses.
In the recent Labour Appeal Court decision of Liberty Group Limited v M (2017) 38 ILJ 1318 (LAC), the employee alleged that although she had made the employer aware of the sexual harassment, the employer had done nothing. The court agreed and found that the employer had failed to consult all relevant parties and take the necessary steps to eliminate the sexual harassment. The court awarded a hefty R 250 000 to the employee as compensation.
The Liberty decision has re-affirmed the importance of an employer’s role in addressing sexual harassment in the workplace. It aptly illustrates the heavy cost on an employer that fails to address allegations of sexual harassment, and fails to do all that is reasonably possible to ensure its employees are not subjected to sexual harassment.
Employers should also recognise that apart from financial risk, there is risk of reputational damage if any allegations that the employer did not address sexual harassment are made known to external parties. With these kinds of risks, employers are urged, now more than ever, to take cognisance of the seriousness that is sexual harassment and to adopt a zero-tolerance approach to sexual harassment in the workplace.
Nonkululeko Mkhwanazi is an associate at Bowmans.