Technology has not only enabled remote work but also introduced new forms of sexual harassment, with South African companies increasingly dealing with inappropriate messages sent between employees.
Phetheni Nkuna, director at law firm Cliffe Dekker Hofmeyr, said that some of the most common examples of cyber sexual harassment include:
- Repeatedly texting a co-worker to ask them out;
- Making fun of a person (body shaming) in a group email or WhatsApp group chat;
- Posting or sending a sexually offensive meme to a workplace collaboration app (Slack, Google Hangouts), WhatsApp, Teams, Zoom or email;
- Posting or sending a lewd and/or sexually offensive GIF;
- Sharing personally identifying information about someone, either to embarrass/humiliate them, or cause them to fear for their safety, with sexual undertones;
Nkuna said that ‘quid pro quo’ sexual harassment – sex for jobs is or benefits or some other benefit – is also a form of harassment often reported in South Africa’s workplace.
Liability for companies
Nkuna said that sexual harassment is covered by a number of pieces of legislation in South Africa, including section 6 of the Employment Equity Act which defines sexual harassment as a form of discrimination.
In addition, the Labour Relations Act deals with the handling of sexual harassment claims in the workplace, while the Criminal Law (sexual offences and related matters) Amendment Act clarifies sexual harassment as a form of criminality.
“Accordingly a victim may pursue avenues availed by the employer, as well as pursue charges against the perpetrator (through the country’s courts),” she said.
Nkuna said that the Department of Employment and Labour also recently published a draft code of good practice on the prevention and elimination of violence and harassment in the workplace.
While the draft policy is still being considered, Nkuna said that the code will introduce further regulations around sexual harassment in the workplace.
“An employer has a duty to provide safe and healthy working environment,” Nkuna said. “They must also take all reasonable and practical steps to ensure that employees do not commit any act of sexual harassment.”
Nkuna also pointed to earlier case law which shows that employers have a duty to ensure that employees are not subject to any form of sexual harassment.
She further warned that employee may sue an employer as a result of allegations that the employer did not deal with sexual harassment complaints in a proper fashion.
In August, Labour minister Thulas Nxesi published a draft code of good practice on the prevention and elimination of violence and harassment in the workplace.
The draft policy, which falls under the Employment Equity Act, and is currently open for public comment, covers a number of areas including sexual harassment and online bullying.
The code aims to protect workers and other persons in the world of work, as well as other workers irrespective of their contractual status.
It applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban and rural areas.
The policy defines ‘sexual violence and harassment’ as directly or indirectly engaging in conduct that the perpetrator knows or ought to know is not welcome, is offensive to the complainant and makes the complainant feel uncomfortable and interferes with work, causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.
- Following, watching, pursuing, or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies, or happens to be;
- Any unwelcome sexual attention, advances or proposals from a person who knows or ought reasonably to know that such attention is unwelcome;
- Unwelcome explicit or implicit behaviour, suggestions, messages, advances, attention, proposals or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated that the complainant or related person would be offended, humiliated or intimidated, (implied or expressed), the promise of reward for complying with a sexually-orientated request, proposal, advances or attention;
- Implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually-oriented request, advance, attention, or proposals.
In addition to providing a number of examples, the code sets out a test to be applied for sexual violence and harassment.
The test states that the subjective feelings of the complainant should be evaluated against the objective standard of a “reasonable person /complainant” test which involves how the reasonable person would have reacted in the circumstances.
It notes that sexual attention becomes sexual violence and harassment when:
- The behaviour is persistent, although a single incident of harassment can constitute sexual harassment;
- The recipient has made it clear that the behaviour is considered offensive;
- The perpetrator knows or ought to have known that the behaviour is regarded as unacceptable.