Sexual harassment remains a scourge in the modern workplace and one that warrants concerted efforts by progressively minded companies and individuals if we wish to dramatically improve the work experience of so many long-suffering female employees.
While incidents of male sexual harassment exist and deserve equal scorn, women remain the focus of many workplace predators.
Recent reports of a high-profile Hollywood mogul’s antics serve to highlight that no workplace or industry is immune to the unwarranted sexual advances of delinquent managers, supervisors, colleagues and clients.
Every business should consider how its current policies and practices may inadvertently contribute to a culture of acceptance or denial of this practice. Employers that fail to take reasonable steps should expect little sympathy in the employment tribunal and courts (including the critical Court of Public Opinion) when their executives or staff are shamed for their sexual antics in the workplace.
In South Africa, many businesses have made great strides in embracing workplace diversity and eradicating various forms of harassment and discrimination in the workplace, through training, awareness creation and stringent action against wrongdoers. There are still some environments, though, where the mention of sexual harassment is viewed as “fun by the lads” and thus ignored.
The recent social media #MeToo campaign, where victims of sexual harassment identified themselves using the hashtag, emphasised the magnitude of the problem. Within one day, Twitter confirmed that #MeToo had been tweeted more than a half a million times.
The widespread nature of sexual harassment is also underscored by a recent study by Legalweek that reports that over 50% of female lawyers indicated that they personally experienced sexual harassment ion the workplace more than once.
The same report confirms that our perception of sexual harassment is also influenced by our own gender – more female employees believe that sexual harassment is a problem in the workplace than men (37% versus 21%), with more men holding the view that law firms take sexual harassment seriously than their female colleagues (58% versus 35%). This bears the hallmarks of a classic workplace disaster cocktail – men are less inclined to think that sexual harassment is a serious problem but feel that adequate steps are taken to address it, while women (the traditional victims of this blight) experience that it is not taken seriously and that not enough is done to remedy it.
The good news is that South Africa's employment tribunal and labour court have sent exceptionally strong messages to workplace environments on their liability if they ignore employee reports of sexual harassment. South African legislation allows for victims of discrimination and sexual harassment to institute a claim against the employer where the employer failed to take steps to ensure a workplace free of such prohibited behavior.
The Employment Equity Act is the cornerstone statute guaranteeing the right to equality in the workplace. It gives effect to the prohibition against unfair discrimination contained in the South African Constitution where such discrimination may arise in the employment context. It protects employees against various prohibited actions, including harassment. The EEA also places a positive duty on employers to promote equal opportunity in the workplace through elimination of unfair discrimination. Employers attract liability where they fail to take the necessary steps to ensure that their employees do not breach their obligations under the EEA.
Critically, once an employer becomes aware of allegations of harassment, it should investigate the matter. The Employment Equity Act obliges the employer to "… consult with the relevant parties …" and "… take the necessary steps to eliminate the alleged conduct…".
A sexual harassment policy is essential in any workplace, but even more so is how the employer gives effect to it. Employers should ensure that some level of induction or training on harassment and discrimination is provided to employees, especially newly hired staff. Creating an audit trail of complaints lodged and steps taken could avoid some of the difficulties faced by the employer. Perhaps a process similar to a whistleblowing hotline, managed externally, could be used to allow staff to report incidents of sexual harassment.
Employers could also consider appointing a senior executive or manager as its public champion in complaints of discrimination or harassment. Employees may be more inclined to approach a senior employee who has gravitas and the backing of the organisation where they fall victim to harassment.
All businesses should adopt a tough stance on sexual harassment and create a workplace free of harassment and discrimination. This is not only critical from a legal and reputational risk perspective, it is key to ensuring we change perceptions and arrest this abominable behaviour.