Sexual Harrassment in the Working Place

Table of Contents

Introduction

I. Definition and Development of the term
1. Nature of conduct
2. Effect of the conduct
a) Hostile working environment harrassment
b) Quid pro quo harrassment
3. Un-welcomeness
a) Subjective test
b) Objective test
c) The reasonable victim test

II. The South African approach to the definition of sexual harrasment
1. The 1998 Code of Good Practise
2. The 2005 Code of Good Practise
3. Sexual harrassment as discrimination
4. The liability of the employer

Conclusion

Introduction

Sexual harrassment in the workplace is not a new phenomenon but has only attracted intersest for the past 30 years. Before it was nearly invisible and inaudible.^[1] Though even today is still often considered as being a trifling offence. The following examines the status of sexual harrasment in South African Law and presents different approaches to a definition of this divers term.

I. Definition and development of the term

Finding an appropriate definition of sexual harrasmant faces several difficulties. Despite this one can state that the term “sexual harrassment“ generally refers to an unwelcome conduct of a sexual nature, though there is disagreement about the elements in detail.

1. Nature of conduct

It is possible to approach the term with reference to the nature of the committed conduct. This might work in cases of typical and obvious sexual oppression but one would take the risk to exclude behavior which is not of sexual nature but which is implemented in a sexual oppressive manor.^[2] Furthermore sexual interaction, even at work is in principle accepted by the law and does not necessarily contain harrassment.^[3] Therefore the nature of the conduct on its own can not be the decisive factor in finding cases of sexual harrassment. Nevertheless it can be the first step, though the conduct must be unwelcome and attain a certain level of unacceptability.^[4]

When we look at the nature of conduct one can identify several forms. A sexual conduct can for instance consist of physical, verbal (comments with sexual overtone, sex related jokes etc.) and non-verbal conduct (gestures, sexual exposures etc.) but also of assault and even rape.

In order to find cases of sexual harrassment the existence of one or more of these grounds can help to arrive at conclusions but they have to be completed by others elements such as the effect of the conduct on the victim.

2. The effect of the conduct.

By examining the effect of the sexual conduct on the victim one faces a broad spectrum. In general a distinction is drawn between:

- hostile working environment harrassment
- sexual favouritism
- quid pro quo harrassment
- victimization

a) Hostile working environment harrassment:

Hostile working environment has been described as a case where a person is 'robbed of his or her dignity, but not of tangible benefit.'^[5] The robbing of a persons dignity and therefore the creation of a hostile working environment can for instance be caused by pornographic pictures and sex related jokes or comments which are offensive to the recipient.^[6] This kind of harrasmant can be committed by supervisors and co-workers alike because it does not necessarily have to be linked with job- related benefits.

b) Quid pro quo harrasmant:

Quid pro quo harrasment occurs where a supervisor (manager, owner etc.) abuses his position of power by influencing the employees employment circumstances in return for sexual advances.^[7] A form of quid pro quo harrassment is sexual favouritism. This is existent in cases where the supervisor only rewards the employees who agree to commit sexual advances by increasing their salary or by promoting those. Closely connected to the terms mentioned above is harrasmant in form of victimization which is often the result if an employee fails to commit the requested sexual advance.^[8] In these cases the harasser decreases the salary, or humiliates the employee in other, not necessarily sexual ways.

Due to the fact that this kind of sexual harrasmant, a postion of authority is needed, it occurs contrary to hostile working environment harrassment seldom between co-workers.^[9] At this point it should be noted that in cases of sexual harrasment a combination of the different forms can be also possible.

Cases of quid pro quo harrasmant are usually easy to conclude because a loss or threat of loss, of a job related benefit is required for this kind of harrasmant. Harrasment in form of hostile working environment in contrary reveals more difficulties due to the different individual perspectives according to hostility and severity of the conduct.^[10] For example one employee might consider an erotic and not even pornographic photograph as highly offensive while an other tolerates it. Also the the interpretation of female employees of a hostile work environment may differ from those of their male colleagues.^[11]

This aspect show that one must also consider further aspects besides the nature of conduct and the effect on the victim.

3. Un-welcomeness

It is common sense that the committed conduct must also be un-welcome.^[12] A definition of un-welcomeness was provided by the US court in the case in the case Henson v City of Dundee, the court held that:

“in sense that an employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.“^[13]

This definition appears to be useful but in fact it is in several aspects escapist. It does not respect the fact that sexual harrassment is often committed in absence of any witnesses. Furthermore employees do not necessarily complain about supervisors out of fear or due to the power differential. Therefore the fact that a plaintiff did not complain must not be held against him or her. A further issue which has to be discussed under the aspect of un-welcomeness is the past behavior of the victim. It is questionable weather a person who used foul langage or participated in sexual discussions him/herself can claim to be harassed by being exposed to these kinds of communication. According to this The US Supreme Court held that past behavior in form sexually provocative speech can be relevant in determining weather the conduct was un-welcome.

According to hostile workplace environment for instance it is valid to expect a women who has posed naked in a magazine to handle comments on her physicality.^[14]

Problems arise also in cases where a previous relationship is finished while one part still claims its continued existence.^[15]

As shown the main issue while judging about the requirement of un-welcomeness is the perspective. Especially in cases of verbal harrasment and hostile work environment one has to discuss whose perceptions of the circumstances is the crucial factor. One can refer to the victims perspective alone, or on the other hand one could refer to the perspective of an objective observer.

a) Subjective test

This approach relates only to the feelings and perceptions of the victim, without considering the intention and the knowledge of the accused.^[16] Therefore the existence of sexual harrasmant by a wallpaper would only depend on the victims feelings. Objections arise because this purly subjective test would open the door to claiming sexual harrasmant by even the most supersensitive plaintiff based on neglibilities.^[17] Further it is criticized that this approach leads to liability without fault, this concept is generally not accepted in South African law.^[18] Thus a purly subjective test should not be supported.

b) Objective test

The contradictory approach to the subjective test is the objective test, which relates to the viewpoint of a fictional independent observer (reasonable man/person). The main point of criticism is that the judgement about the un-welcomeness would largely be based on a male viewpoint because society values are male-dominated and therefore women's interests would not be taken into account appropriately . This again shows the problem of the different feelings of the sexes according to sexual harrassment which leads to the idea of a “reasonable women“ test.^[19]

An advantage of the objective test on the other hand is that the employer, contrary to the subjective test is protected against frivolous proceedings by supersensitive employees. However by relating to a “reasonable women“ a male employer could be proceeded even if his behavior from his reasonable (male) point of view was not offensive. Therefore the objective test in this case could lead to liability without fault.

c) The reasonable victim test

As shown the subjective test but also the objective test are not appropriate to find cases of sexual harrasmant. Therefore a mixture between these two modells, the so called “reasonable victim“ test has been developed.

[...]

^[1] R Le Roux, p. Vii.

^[2] A Basson, Stell LR 2007 3, p.426

^[3] Garbers 2002 SA Merc LJ373 n 8.

^[4] A Basson, Stell LR 2007 3, p.427. 3

^[5] Grogan, Workplace Law (1997) p. 146.

^[6] A Basson, Stell LR 2007 3, p.428; Robinson v Jacksonville Shipyards 1991 760 FSupp 1486 (MD Fla) 1527

^[7] Item 5.2.3.2 2005

^[8] Item 5.2.3.2 2005

^[9] A Basson, Stell LR 2007 3, p.428,429. 4

^[10] A Basson, Stell LR 2007 3, p.429.

^[11]

^[12] A Basson, Stell LR 2007 3, p.430.

^[13] 862 F 2d 897. (Basson FN 17).

^[14] Burns v McGregor Electronic Industries 1992 955 F 2d 559 (8th Cir). 5

^[15] A Basson, Stell LR 2007 3, p.430.

^[16] A Basson, Stell LR 2007 3, p.432.

^[17] A Basson, Stell LR 2007 3, p.430.

^[18] Basson, Christianson, Garbers, Le Roux, Mischke&Streydom Essential Labour Law 4ed (2005) ch 11.3.

^[19] Ellison v Brady, 1991 924 F 2d 872 (9th Cir); Yates v Avco Corp 1987 819 F 2d 637 (6th Cir). 6