By: Reston Jena (LLB) – University of Fort Hare (Lawyer at SIPETO MDUBA ATTORNEYS offices in BETHAL (078 684 9728 or 017 647 1338)
Being the good citizen that l am, one day on my way from the Middleburg court, l found myself offering transport to a lady who was standing by a hiking spot on her way to Bethal. Five minutes into the journey, we were chatting gaily about the unpredictable weather when the lady received a message on her phone. Through the rear view mirror l saw her throwing the phone on the vacant seat and her face threatened to go up side down in tears. Sympathetic enquiries from me and my colleague showed that this lady was employed at a local engineering firm as a welder but for the eight odd months that she had been with this company, she was continually subjected to nude and partially nude pictures posted by her male co-workers in common areas, through Bluetooth and in places where she would have to encounter them, including her tools box. The men referred to Philisiwe(not her real name) as “baby,” “sugar,” “momma,” and “sweety.” In addition, the men wrote obscene words directed at the victim all over the plant. The men also made numerous suggestive and offensive remarks to the victim concerning her body and the pictures of a voluptuous black lady posted on the walls. She had had lodged complaints about this atmosphere of harassment on a number of occasions, but the company’s supervisory personnel provided little or no assistance and this was putting a strain on her marriage. Quitting the job was not an option because she was the bread winner but these happenings at the work place were also draining her emotionally and psychologically.
Sexual harassment in schools or in workplaces has become so unbridled and is now perceived in the eyes of many victims (who choose to remain aloof) and harassers (who find contentment in it) as a conduct not contrary to the legal convictions of the community. Yet the conduct is not just contra bones mores (illegal) but it undermines the ability to work and has a negative impact on production resulting in undesired consequences. Sexual harassment is an entirely deplorable conduct which undermines the magnitude of esteem needs (need for status, recognition and self-respect). The legal position in South Africa is that employees are afforded the right to equal treatment, privacy and the all-encompassing right which is the right to dignity. Both the revered Constitution of the Republic of South Africa, which is the supreme law of the land and the current labour legislation, protects the employees
But what is sexual harassment?
Conduct which can constitute sexual harassment ranges from innuendo(a derogatory suggestion about a person or a thing with the intention to insult), inappropriate gestures, suggestions or hints or fondling without consent or by force in its worst form, namely rape.
Forms of sexual harassment, inter alia, are:
repeated requests for dates that are turned down, or unwanted flirting, posting e-mails or pictures of a sexual or degrading nature, displaying sexually suggestive objects, pictures, indecent exposure, fondling, sexual assault and rape, strip search by or in the presence of the opposite sex, unwelcome innuendoes, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, Unwelcome whistling directed at a person or group of persons.
Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.
Another form of sexual harassment is sexual favouritism. This, as is indicated in the Code of Good Practice, exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.
It is crystal clear that a number of human rights entrenched in the Constitution of the Republic are infringed in the conduct of sexual harassment. In a chain of case law it has been reiterated that Constitutional rights which accrue to the citizens and residents of the Republic, which include but not limited to right to privacy, right to freedom and security, dignity are violated every time an employee is sexually harassed. The Constitution protects all people from any form of sexual harassment by affording them rights. The current labour legislation plays a pivotal role in protecting employees from sexual harassment. The Employment Equity Act prohibits discrimination in the workplace, either directly or indirectly.
Sexual attention becomes sexual harassment if the recipient or victim has made it clear to the harasser that the behavior is unacceptable, or if the perpetrator should have known that the behavior is unacceptable and if the behavior is persistent although a single act would result in sexual harassment. Two tests are used by the courts to prove sexual harassment, the subjective test and the objective test. The subjective test would be whether the victim found the sexual attention unwelcome, that is whether or not the behavior was sexual harassment in the eyes of the complaint and the effect that it has on her. The objective test is where the surrounding circumstances of the case are considered and then decide whether a reasonable person would consider such conduct as sexual harassment.
Victims of sexual harassment are advised to file a grievance with their supervisors, approach the CCMA but the best would be to get expert advice from an attorney who specializes in employment issues. Victims should confront the harassers. The victims should not delay reporting the incident and should have a detailed report of the incident so that they would be able to respond to the Who, When, Why, What and the How questions. Do not hesitate.
RASTON JENA (LLB DEGREE)
Legal advisor at SIPETO MDUBA ATTORNEYS with offices in BETHAL (078 684 9728 or 017 647 1263)