WHAT IS SEXUAL HARASSMENT?

Sexual harassment is dealt with in the Code of Good Practice on the Prevention and Elimination of Harassment In The Workplace and is defined as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace and takes into account the following factors:

1. Was the conduct on prohibited grounds (sex, gender or sexual orientation)?
2. Was it unwelcome? Ways to show behaviour is unwelcome include verbal and non-verbal actions like walking away or not responding to the harasser.
3. What was the nature and extent of the sexual conduct? The conduct can be physical, verbal or non-verbal:
   • Physical includes 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.
   • Verbal includes unwelcome 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 then, inappropriate enquiries about a person’s sex life, the whistling of a sexual nature and sending sexually explicit text by electronic means or otherwise.
   • Non-verbal includes unwelcome gestures, indecent exposure and displaying or sending sexually explicit pictures or objects
   • The conduct can also be victimisation where a person gets victimised for failing to respond to sexual advances and the intention is to humiliate him or her; or sexual favouritism – ‘rewards’ for sex.

4. What was the impact on the employee? This is a subjective test and involves looking at the effect of the action on the victim’s dignity. It takes into account the circumstances of the employee and the positions of power between the victim and the alleged harasser.

SEXUAL HARASSMENT AS A FORM OF UNFAIR DISCRIMINATION

The Code says that sexual harassment is a form of unfair discrimination and that harassment on the grounds of sex and/or gender and/or sexual orientation is prohibited.

TEST FOR SEXUAL HARASSMENT

The Code defines which factors must be taken into account when deciding whether an action constitutes unwelcome conduct. It gives guidelines as to what constitutes sexual harassment and explains what is understood by ‘nature and extent’ of the conduct (See Definition of ‘unwelcome conduct’).

When it comes to the impact of the conduct, the code says the conduct must be an impairment of the employee’s dignity. The relevant considerations here are the circumstances of the employee and the positions that the employee and the alleged harasser hold in the organisation. When assessing the impact of the conduct, the test is a subjective one where the focus is not only on the actions that constitute sexual harassment, but more substantially on the effects and the circumstances surrounding these actions. So, it requires the employer to look at the psychological impact of the sexual conduct on an employee and not only at how an objective person might judge the action.

Digital harassment is also conduct that can constitute sexual harassment.

Cases involving sexual harassment must be dealt with in terms of the company’s harassment policies and procedures. (See Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace)