Combatting Sexual Harassment In The Workplace - Karmini Pillay

KARMINI PILLAY is a senior lecturer at the School of Law, University of Witwatersrand; and a trainer in the Labour Dispute Resolution Programme for the CCMA at the Mandela Institute. She joined the School of Law in 2004. She holds a Masters in Law degree specialising in Labour Law, particularly in Employment Equity Law.

In the face and growth of global movements – such as, the #MeToo campaign, The Silence Breakers and #NotInMyName, there is a greater need for more sensitisation to the scourge of sexual harassment in the workplace. In 2017, within just 24 hours of these global campaigns, more than two million #MeToo tweets from over 85 countries were published by people identifying as, or aligning to, victims of sexual misconduct, with more than 12 million Facebook posts on the #MeToo movement. These global campaigns illustrate the harsh truth that no industry or workplace is immune to the unwarranted sexual advances of predatorial colleagues, clients, managers and supervisors.

The #MeToo movement promotes a culture of accountability, and emphasises the need to change behaviour and the need to re-evaluate and strengthen workplace systems and policies. The Employment Equity Act 55 of 1998 places a statutory duty on every employer to adopt and implement positive measures to eliminate unfair discrimination and promote equality on the workplace. It is no longer sufficient for employers to be reactive in instances of sexual harassment – what is needed is a strong proactive approach by employers. Leaders need to own this issue, or as recent events indicate, suffer damage to their brand and bottom line. Sexual harassment is an unseen risk at many organisations, and it has been festering for over time. There needs to be a radical shift in the way in which organisations deal with this issue.

This begs the following critical questions of employers:

1. Do employers fully understand the current legal framework?

2. What are an employer’s legal obligations arising from the relevant Codes of Good Practice (the amended Code and the previous Code)?

3. Is there a legally sound sexual harassment policy in place?

4. Do employers fully understand their statutory duties in the handling of sexual harassment complaints?

5. What informal processes are in place to deal with complaints of sexual harassment?

6. What formal processes are in place to deal with complaints of sexual harassment?

7. Has one’s workforce been adequately trained on the sexual harassment policy?

8. Are employers and staff adequately trained on identifying sexual harassment?

9. Are employers and staff adequately trained on how to identify whether the alleged behaviour was unwelcomed or not?

10. What is the scope of risk and liability for the employer in instances of non-compliance with legal obligations?

11. Understanding the psychology of the victim, and how to deal with the issue of a complainant not reporting a complaint of sexual harassment immediately.

12. Are employers adequately trained to evaluate the credibility of the complainant and the alleged wrongdoer during internal processes?

13. What non-legal strategies can an employer develop and implement to combat sexual harassment in the workplace?

14. What is the workplace culture, and is there a need to re-evaluate the current workplace culture?