COSATU on Sexual Harassment
COSATU committed itself to “fight against sexual harassment in whatever form it occurs” at its Inaugural Congress in December 1985. The COSATU Women’s Conference in 1989 noted that “women workers are sexually harassed within the union, at work and in the community” and resolved to “encourage firmness and self-discipline within the unions, at work and in the community” in order to “restore women’s dignity” and “protect them from sexual harassment.”
The COSATU Congress in 1989 confronted the issue of sexual harassment in greater depth, including the thorny issue of sexual politics in unions (which refers to sexual relationships within unions fraught with unequal and oppressive gender power relations). This laid the basis for the development of a COSATU Code of Conduct on Sexual Harassment, which was further discussed in the 1994 Congress and finally adopted in 1995. COSATU also recognised that sexual harassment must be codified in legislation as an offence, and thus COSATU was the initiator and one of the main drafters of the NEDLAC Code of Good Practice on the handling of cases of Sexual Harassment in the Workplace, which was adopted in 1998 as an addendum to the Labour Relations Act, and later amended and attached to the Employment Equity Act of 2005.
But sexual harassment remains a serious problem in unions and workplaces. We need to do more to create safe, harassment-free workplaces. COSATU adopted a Policy and Procedure for the Handling, Prevention and Elimination of Sexual Harassment at its 12th National Congress in November 2015. The policy requires that COSATU and affiliates establish standing sexual harassment disciplinary committees to handle cases of sexual harassment, with people who are trained to handle such matters in an informed and sensitive manner. The policy also provides for the establishment of sexual harassment commissions from national to local levels to play an educational, advocacy and monitoring role.
Defining and Understanding Sexual Harassment
Sexual harassment is any unwanted attention of a sexual nature that takes place in the workplace or public space. Sexual harassment is disturbingly widespread in the South African workplace. Sexual Harassment is a form of gender-based violence, which is sometimes referred to as violence against women. However, gender-based violence is broader that violence against women, because it includes harassment of gay men, lesbians and transgendered people on the basis of their sexuality and gender identity.
Forms of sexual harassment
There are various forms of sexual harassment that range from subtle attention to the most extreme forms of violence, like rape. Examples of sexual harassment may include the following, but are not limited to the listed examples:
Touching, and any other bodily contact, such as patting, pinching, fondling, grabbing a person around the waist, interfering with a person’s ability to move, molestation, assault, attempted rape or rape.
Sexual advances, repeated requests for a date that are turned down, unwanted flirting, telephone calls, text messages, emails or other forms of written and/or electronic transmission with sexual overtones, sex related jokes or insults, inappropriate enquiries about a person’s life, whistling, and comments about a person’s clothing and/or body.
Leering/staring, winking, public display or posting/transmitting of emails or pictures of an offensive, sexually suggestive or derogatory nature, playing sexually suggestive music and indecent exposure.
Quid pro quo harassment
Transactional sex (the demand for sexual favours) in return for, amongst others, a job, a promotion, favourable working conditions, retention of employment, improved benefits, or to secure a salary increase. This is also referred to as quid pro quo sexual harassment. This could also apply to the demand for sexual favours in return for representation by the union.
Sexual favouritism occurs when a person who is in a position of power rewards only those who submit to his/her sexual advances. Other employees who do not submit to sexual advances are unfairly treated in the union or at work, for example, being denied promotions, salary increases, or victimised through unfair disciplinary measures being instituted against them.
Who can be a victim or perpetrator of sexual harassment?
Although the Employment Equity Act deals with the relationship between employer and employee, not only employees can be victims of sexual harassment in the working environment. The victim and perpetrator of sexual harassment do not have to be co-workers.
Is it still sexual harassment if it took place away from the employment premises or outside of working hours?
Yes. In Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014)  ZALCCT 62 (23 October 2015), the sexual harassment occurred away from the employer’s premises and after working hours.
The Court held that the employer was entitled to discipline the employee as the sexual harassment occurred in the context of a work related social event and affected the employment relationship.
Is it still sexual harassment if I agreed to something because I felt that
I had no choice?
You have experienced sexual harassment even if you agreed to engage in behaviour of a sexual nature, if you did so under the following circumstances:
- Where you agreed to engage in the sexual behaviour because you were intimidated and afraid of what would happen to you if you did not agree. For example, the person threatens to hurt or harm you or your children if you do not engage in the sexual behaviour.
- Where the harasser influences or threatens to influence your employment circumstances if you do not agree. For example, the person threatens to dismiss you or discipline you if you do not agree to engage in the sexual behaviour. Alternatively, the person may suggest that he will promote you or increase your salary if you engage in the sexual behaviour. This type of behaviour is known as quid pro quo harassment.
- Where a person in authority in the workplace rewards only those who respond to his sexual advances. This is referred to as sexual favouritism.
What do to when you are/have been sexually harassed?
When should I report sexual harassment to my employer?
You cannot be dismissed or punished in any way for reporting sexual harassment to your employer.
How do I report sexual harassment to my employer?
You should try to report the sexual harassment as soon as reasonably possible so that steps can be taken to protect you from further harassment.
- You can bring the sexual harassment to the attention of your employer directly or through someone that you trust like a friend, colleague, a trade union representative or human resources official.
- If you have delayed in reporting the sexual harassment because you were not ready to do so or because you were afraid of what would happen to you once you reported it, this does not prevent you from taking action against the harasser.
- If you choose to advise your employer of the sexual harassment through someone else, you can ask the person to keep the information confidential and not to tell anyone other than your employer.
- If your workplace has a sexual harassment policy, check the policy to see what options are available for how to report sexual harassment. If you are not comfortable with reporting the sexual harassment in the way provided for in the policy, you can choose to bring it to your employer’s attention in any way that you choose.
What can I expect from my employer when I report sexual harassment?
Once the employer has been made aware of sexual harassment, the employer should consult with you and take all the necessary steps to address the complaint of sexual harassment. It is against the law for your employer to do nothing after you report that you have experienced sexual harassment. You can ask your union to negotiate with your employer to provide or pay for confidential advice or counselling to help you to deal with the effects of the sexual harassment.
You have the following rights:
- The right to deal with the complaint of sexual harassment through an informal process or through a formal process. Your employer should also explain the available procedures to you especially if your employer has a policy for dealing with sexual harassment matters.
- The right to have the matter investigated and handled in such a manner that the identities of any people involved, including yourself, are kept confidential except from those people who are dealing with the investigation.
- You have the right to choose whether you want to follow an informal procedure or a formal procedure.
- Depending on the circumstances, you can choose to first follow the informal procedure and then follow the formal procedure. Alternatively, you can choose to proceed directly with a formal process. This depends on the type and duration of the harassment.
- If it appears to your employer that there is a risk of harm to others in the workplace, your employer may choose to follow a formal procedure to deal with the complaint of sexual harassment regardless of your preference.
Making an Informal Complaint
An informal procedure can be followed if you want your employer to bring the sexual harassment to the attention of the harasser but you do not want your employer to conduct an investigation or to take any formal action against the harasser. This can be done through, for example, a discussion between the employer and the harasser or providing the harasser with a circular or memo regarding the type of behaviour that he is engaging in which is not welcome.
Where the harasser is given the identity of the complainant
You can ask your employer to have someone of your choice explain to the harasser that his behaviour towards you is not welcome and that it makes you uncomfortable and interferes with your work. The harasser should be asked to stop engaging in such behaviour.
Where the harasser is not given the identity of the complainant
You can ask your employer to have someone of your choice explain to the harasser that certain types of behaviour make employees uncomfortable and constitute sexual harassment. With this procedure, the harasser is not given your identity but is generally made aware of the type of behaviour that is inappropriate.
Making a Formal Complaint
You can choose to follow a formal procedure regarding your complaint of sexual harassment, either with or without first following an informal procedure. If your employer has a sexual harassment policy or a policy for dealing with complaints or grievances in the workplace, that policy will set out the internal processes that need to be followed in order for the complaint of sexual harassment to be investigated and for action to be taken against the harasser. If your employer does not have a sexual harassment policy, you can discuss the manner in which the complaint will be dealt with.
How to make a formal complaint
The following steps should be agreed on for the formal procedure:
- A description of the incident of sexual harassment
- The name of the harasser
- What action you want the employer to take against the harasser
Once you have lodged the complaint or grievance, the matter will be investigated by your employer.
The investigation will usually begin with the employer or human resource official interviewing you. You may be required to provide a written statement with details of the sexual harassment that you experienced. The person that you have accused of engaging in sexual harassment may also be interviewed and required to provide a written statement. Any witnesses who may have witnessed the sexual harassment may also be interviewed.
Any relevant documents that can be used as evidence of the sexual harassment will be collected. These documents could include emails or any other written messages or pictures that were sent by the harasser to you which can be used as evidence of the sexual harassment that you experienced.
Once the sexual harassment complaint has been investigated, there will be a hearing at which both you and the person who sexually harassed you will have an opportunity to explain what happened. The hearing will be conducted by a chairperson who can be someone from the organisation like a manager or it can be someone from outside the workplace. If the hearing is conducted by someone within the workplace, that person must be independent and should not have been part of the investigation. The chairperson will consider the evidence and may ask questions to help him or her to decide what action should be taken. After the hearing, the chairperson will make a recommendation regarding whether the person engaged in sexual harassment and if so, what action should be taken against him.
If the person is found guilty of sexual harassment then the penalty can range from a written warning to a dismissal depending on the seriousness of the sexual harassment.