Our previous article talked about sexual harassment at year-end office functions and the possibility that there could be sexual harassment claims following such parties.
While the rules around sexual harassment may seem obvious – there are actually many grey areas and, as a result, many myths which should be demystified. There are common misunderstandings around sexual harassment at work.
MYTH: You can only accuse colleagues of sexual harassment in the workplace.
FALSE. The victim and perpetrator do not have to be colleagues, the working relationship includes suppliers, contractors, clients and even job applicants.
MYTH: The employer can only take disciplinary action if it happens at work or within working hours.
FALSE. A precedent was set in a 2015 case (Campbell Scientific Africa vs Simmers), and the judge concluded that the employer was entitled to discipline the employee at fault, as the sexual harassment occurred in the context of a work-related social event. The sexual harassment also affected the working relationship. This ruling opens the door for similar convictions.
MYTH: It needs to happen more than once to be sexual harassment.
FALSE. A single incident of improper behaviour or unwanted sexual advances can be grounds for an official complaint.
MYTH: It only counts as sexual harassment if the perpetrator is more senior than the victim.
FALSE. It does not matter who is more senior, what matters is if the incident(s) are in a work-related context and if the behaviour affects the working relationship. Sexual harassment can happen between co-workers, suppliers and more – it is not limited to the actions of a team lead, manager or supervisor.
MYTH: It is not harassment if the sexual advances were previously welcomed.
FALSE. Even if the parties have previously had sexual relations, this doesn’t mean that the continuation thereof is welcome. If the victim makes it clear, verbally or non-verbally (such as leaving the room when the perpetrator walks in), that the attention is unwelcome, then the victim can lodge an official complaint.
The behaviour must be considered sexual in nature.
TRUE. Sexual harassment can include physical, verbal and nonverbal conduct.
- Physical conduct: unwelcome physical behaviour, from touching to sexual assault and rape.
- Verbal conduct: innuendo, suggestions, hints, sexual advances, sexual comments, whistling, jokes about sex, and asking inappropriate questions about someone’s sex life.
- Non-verbal conduct: indecent exposure, and emailing or instant messaging sexually explicit pictures.
Sexual harassment has been called “the most heinous misconduct that plagues a workplace” by the Labour Appeal Court. Employers and employees alike need to learn to identify and act on the signs, and employees must be more aware of their conduct within the workplace.
– Wallace Albertyn is a Senior Associate and Labour Law Practitioner at LabourMan Consultants.