Sexual harassment as a gender inequality and a form of workplace discrimination: A South African perspective

Abstract

Sexual harassment is not a new phenomenon in South Africa. The continued existence of sexual harassment in the workplace specifically targeted at female employees undermines the constitutional rights to equality, human dignity, privacy, physical and psychological integrity, and fair labour practices. Against this backdrop, this article examines the different contributory factors that exacerbate or provide an enabling environment for sexual harassment to persist namely; gender inequality, sexist attitudes, and inefficient grievance procedures. Using an in-depth analysis of literature scholarly works, government reports, and legislative frameworks aimed at preventing sexual harassment in the workplace, and the selected jurisprudence of the courts, this article scrutinises the phenomenon of sexual harassment as a gendered harm. It evaluates whether there are adequate measures aimed at assisting victims of sexual harassment and gender inequalities in South Africa. Finally, in its conclusion, the article argues that, for labour legislation to efficiently address the prevalence of sexual harassment it should adopt a threefold function namely to address sexual harassment as a form of an unfair labour practice, gender discrimination and psychosocial harm.

Introduction

Sexual harassment (SH) is defined in general terms as unwanted conduct of a sexual nature that is not welcome and mutual to the persons concerned (Aina-Pelemo et al. (2019/2020). In the context of the work environment, Mowatt (1986) defined SH as unwanted sexual attention in the employment environment. The definition by Mowatt was one of the first working definitions of SH in South Africa. In 1998, the Code of Good Practice on the Handling of Sexual Harassment Cases (Code of Good Practice on the Handling of Sexual Harassment Cases, Notice 1367 of 1998 in terms of National Economic Development and Labour Council Labour Relations Act, 1995, Pretoria) hereinafter the 1998 Code, defined SH as an unwanted conduct of a sexual nature (Item 3 of the 1998 Code). Item 4 of the 1998 Code stipulated the various forms of SH such as physical conduct of a sexual nature, verbal forms i.e., sexual innuendos, jokes, non-verbal forms i.e., gestures, indecent exposure and quid pro quo harassment. The Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (Code of Good Practice on the Handling of Sexual Harassment Cases (amendment) (2005) Government Gazette No. 27865, General Notice 1357 of 2005, 4 August 2005: Department of Labour, Pretoria), hereinafter the 2005 Code, defined SH in the working environment as a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation (item 3 2005 Code). The newly promulgated Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace of 2022 (Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022) Government Gazette No. 46056, 18 March 2022: Department of Employment and Labour, Pretoria) hereinafter the 2022 Code, not only broadens the definition of harassment but takes cognisance of the fact that harassment including SH is a form of gender-based violence (see Preamble, 2022 Code). In item 4 harassment is defined as

• unwanted conduct, which impairs dignity;

• which creates a hostile or intimidating work environment for one or more employees or is calculated to or has the effect of, inducing submission by actual or threatened adverse consequences; and

• is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA. Section 6(1) of the Employment Equity Act 55 of 1998 (EEA) provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy…etc.

The above definitions indicate that SH as defined within the South African labour framework has a gender connotation. The gendered aspect of SH has also been identified by various scholars. Oni et al. (2019: 1479) allude to the fact that although the perpetrator of SH may be of the same gender as the victim, in most cases men are found to be the perpetrators of SH in institutions of learning and workplaces. In corroborating this point, Ajayi et al. (2021) state that women are particularly at a higher risk of sexual violence or assault during their college years. Govender (2023), indicates that in South Africa, women are at the receiving end of gender-based violence mostly by those closest to them such as intimate partners, work colleagues, and strangers. To this end, Calitz (2022: 914) argues that “the fact that women are victims of sexual harassment more often than men emphasises the need to address the gender dimension of sexual harassment”.

Additionally, statistics on sexual violence also indicate that women are more likely than men to fall victim to sexual crimes. The Crime Against Women in South Africa Report, 2018 reveals that in the period 2016/17, 250 out of every 100,000 women were victims of sexual offenses compared to 120 out of every 100 000 men. Further that using the 2016/17 South African Police Service statistics, in which 80% of the reported sexual offenses were rape, together with Statistics South Africa’s estimate that 68,5% of the sexual offences victims were women, data reveal that at least 138 out of 100,000 women were raped (Crime against Women in South Africa Report, 2018). According to the Crimes Against Women in South Africa: An analysis of the Phenomenon of GBV and Femicide Report, in the period 2018/2019 (Stats, 2020. Available at https://www.parliament.gov.za/storage/app/media/1_Stock/Events_Institutional/2020/womens_charter_2020/docs/30-07-2020/A_Statistical_Overview_R_Maluleke.pdf) 50% of assaults against women were committed by someone close to them such as a friend, 22% by an acquaintance, 15% by a spouse or intimate partner, 13% by a relative or a household member and 29% by unknown persons.

To this end, Smit (2021: 25) posits that the rampancy of violence in society also affects the employment environment. Further that workplace violence in the form of SH affects more women than men (Smit, 2012: 37). The Eliminating Violence and Harassment in the World of Work Convention No. 190, Recommendation No. 206, and the accompanying Resolution, 2019 (Available at https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_721160.pdf), hereinafter the Violence and Harassment Convention also recognises that violence and harassment affect both the quality of public and private services, and may prevent persons, particularly women, from accessing and remaining and advancing in the labour market (see Preamble to the Violence and Harassment Convention, 2019). As such Mutinta (2022) argues that gender-based violence, including SH “is violence directed against any person based on gender norms and unequal power relationships”. Thus, violence against women perpetuates gender stereotypes and seeks to maintain women’s subordinate position and control by men (Enaifoghe et al., 2021: 132). This entails that people suffer harm not because they are individuals but because they belong to a particular class, race, group or gender (Conaghan, 1996: 408). Even in that class, race, group or gender the extent of harm sustained differs. Conaghan also observes that the harm that women suffer in society is quite different from the harm suffered by men (Conaghan, 1996: 407-408). This viewpoint is supported in the case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others ([2015] ZALCCT 62), which concerned an appeal by Campbell Scientific Africa (Pty) Ltd (appellant), with the leave of the Labour Court in which the dismissal of the first respondent, Mr Adrian Simmers, for sexual harassment and unprofessional conduct was found substantively unfair and his retrospective reinstatement ordered subject to a final written warning valid for 12 months. Mr Simmers, a 48-year-old installation manager employed by the appellant, Campbell Scientific Africa (Pty) Ltd, was dismissed following a disciplinary hearing for unprofessional conduct and the sexual harassment of 23-year-old Ms Catherine Markides, who was employed by Loci Environmental (Pty) Ltd, through which company the appellant was contracted as part of a consortium to work on a joint project in Botswana. Aggrieved with his dismissal, he referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). In upholding the appeal and finding the dismissal of Mr Simmers fair, the Labour Appeal Court held as follows;

“At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often “…less about the abuse of real economic power, and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor” (Campbell case para 20).

Furthermore, in the case of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021 (5) SA 425 (CC)) which concerned the dismissal of Dr McGregor (the applicant) who was employed as the Head of Anaesthesiology at George Hospital, a public hospital which falls under the Department of Health, Western Cape (Department), the third respondent. In December 2016, Dr McGregor was dismissed by the Department following an internal disciplinary inquiry in which he was found guilty of four charges of misconduct that amounted to sexual harassment against a subordinate. In January 2017, Dr McGregor lodged an internal appeal against the dismissal, which was dismissed. Aggrieved, Dr McGregor referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council (the first respondent), challenging both the substantive and procedural fairness of the dismissal. The arbitrator (the second respondent) found Dr McGregor guilty of three of the four charges of sexual misconduct. However, he concluded that the dismissal was substantively unfair, because he had not been treated the same as another employee facing similar charges, and procedurally unfair because Dr McGregor was denied an opportunity to defend himself as relevant evidence was excluded during his disciplinary hearing. The arbitrator, exercising his discretion, opted not to order reinstatement since the misconduct had been proven and reinstatement would be intolerable but ordered 6 months compensation in the form of his remuneration in the amount of R924 679.92. Dr McGregor appealed to the Labour Court and the Labour Appeal Court without success for reinstatement and to have the disciplinary hearing declared procedurally and substantively unfair. The matter eventually came before the Constitutional Court (CC). In refusing the leave to appeal by McGregor, the CC reduced the amount of compensation to 2 months remuneration and held that

“Whilst it is true that compensation for unfair dismissal serves an important purpose, the appropriateness of compensation must be understood within the context of the dismissal. This means that when the reason for the dismissal is sexual harassment, this must be taken into account. This is because our Constitution not only provides for the right to fair labour practices, but maintains that our constitutional democracy is founded on the explicit values of human dignity, integrity and the achievement of equality in a non-racial and non-sexist society under the rule of law. Yet, sexual harassment strips away at the core of a person’s dignity and is the antithesis of substantive equality in the workplace. It also promotes a culture of gender–based violence that dictates the lived experiences of women and men within public and private spaces and across personal and professional latitudes” (McGregor case para 42).

Therefore, the nature of SH as discussed above qualifies it as a gendered harm and thus a form of gender-based violence. In addition, to the gendered harm trait of SH, studies indicate that SH causes immersive mental anguish and distress. Ramsaroop and Parumasur (2007: 25), avers that SH often results in emotional and psychological trauma that culminates into an offensive, intimidating and hostile working environment for the victim and impedes productivity and social interactions within the organisation. Zinyemba and Hlongwana (2022) assert that gender-based violence have intense and long-lasting effects on the survivor’s mental health, such as anxiety, increased peril of post-traumatic stress disorder and depression. Hence, in the case of Liberty Group Limited v Masango ([2017] ZALAC 107), which involved the vicarious liability of the employer (Liberty Group Limited) for failure to take reasonable steps in terms of s60(3) of the EEA to protect the respondent (Ms Masango) from sexual harassment perpetrated by Mr Mosesi who was her manager. In rejecting the appeal brought by Liberty Group Limited against the ruling of the Labour Court to hold it vicariously liable for Mr Mosesi’s conduct, held that

“the respondent is a reliable and credible witness who “broke down several times during her testimony evincing the traumatic effect of the harassment on her”. There was “no reason to disbelieve [her] version. The fact that she was oscillating about the dates of the incidents…is not sufficient to impeach her credibility and reliability”(Liberty case para 21).

As a result, this article addresses the issue of SH as a form of an unfair labour practice, gender discrimination (a form of gender-based violence and gendered harm) and psychosocial harm. Firstly, the article examines the origin and development of SH within the American context and the South African context. This is important because, in South Africa, earlier definitions on what constitutes SH relied heavily on SH law as established in the United States of America. However, the law on SH in South Africa has evolved over the years with the adoption of the Constitution (Constitution of the Republic of South Africa No. 108 Of 1996 [Date of Promulgation: 18 December, 19961 [Date Of Commencement: 4 February, 1997]) and legislative frameworks that place SH within the ambit of gender-based violence. Secondly, the article analyses the prevalence of SH as gender-based violence in the workplace in South Africa and the relevant legislative frameworks that have been adopted to curb SH in the workplace and their efficiency is examined. Thirdly, the factors that exacerbate SH against women are examined including the impact SH has on women’s psychological well-being. Fourthly, the remedies that are available to victims of SH are scrutinised including their limitations. Lastly, a conclusion is drawn to highlight the fact that SH should be viewed within a broader threefold scope as an unfair labour practice, a gendered harm and psychosocial harm.

The origin and development of sexual harassment as a form of sex discrimination

This section of the article examines the development of SH law in the United States of America (USA) and South Africa. The American context is important because it sets a standard for the development of SH law in South Africa. The reason is that in its infancy, the law on SH in South Africa heavily depended on the developments in the USA. According to Snyman-van Deventer and De Bruin (2002: 201–207), the developments in the USA laid the foundation for liability legislation for SH in the workplace. Furthermore, the USA’s approach in defining SH as a form of discrimination curbed a way for other jurisdictions including South Africa to adopt a similar approach (Aeberhard-Hodges, 1996). Therefore, earlier case law and legislative frameworks on SH in South Africa relied heavily on the SH guidelines set out by the Equal Employment Opportunity Commission in the USA through the EEOC Guidelines on Sexual Harassment (45 Federal Register 74676 (10 November 1980), codified in 29 C.F.R. §1604.11). However, the entrenchment of the right to equality and non-discrimination in the Constitution of the Republic of South Africa, 1996 (the Constitution), the EEA and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and eventually the relevant legal developments that position SH as a form of gendered and psychosocial harm makes it trite to understand the origin and development of SH in South Africa.

American context

In the USA, sec 703. (42 U.S.C. 2000 × 10⁻²)(a)(1) of TITLE VII of the Civil Rights Act of 1964 paved a way for SH law to strive. This provision reads as follows

“It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”

The Equal Employment Opportunity Commission (EEOC) later adopted the provisions of TITLE VII to advance SH law by defining harassment within the ambit of sex discrimination (McLain 1981: 277–279). To this end, harassment was defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment (EEOC Guidelines on Sexual Harassment).

The EEOC Guidelines on sexual harassment recognised quid pro quo SH as a major concern because it limited women from accessing the workplace. Johnson et al. (2018) assert that the first recognition of SH can be traced back to the beginning of a period when women faced losing their jobs in instances where they rejected the overtures initiated by their employers. According to Siegel (2008) this practice was already in existence back when African-American women were enslaved. During that period, the women who had been forced into chattel slavery did not have the law that would fulfill the purpose of protecting them. According to Faraday (1994: 56) SH was often treated as a matter of sexism which is not indicative of broader social injuries. Thus, many women felt that exposing their harassers would result in further victimisation. MacKinnon (2001: 813-814) observes that in the past the law has contributed to this failure by women to report SH cases because harms suffered by women were not recognised or remedied. This non-recognition of gender specificity of harm by law comes from the assumption that the society is made of free, separate, autonomous individuals competing with one another in pursuit of self-interest (Conaghan, 1996: 408). Accordingly, the law viewed SH as an individual’s problem rather than the manifestation of power abuse in gender relations and social arrangements. Hence, the recognition of SH as a gendered harm brings both the individual and social dimensions of SH into the limelight. SH was finally recognised as a form of sex discrimination by federal case law in the 1976 case of William v Saxbe 413 (1976). In this case it was held that:

“the retaliatory actions of male supervisor, taken because the plaintiff declined his sexual advances, constituted sex discrimination under Title VII, and that any rule, regulation, practice, or policy that is applied based on sex alone is sex discrimination.”

Another case that has played a major role in the legal recognition of SH as a form of sex discrimination is the Bundy v Jackson (1981). In this case, the District Court ruled that although the plaintiff had successfully proved allegations of improper sexual advances, she had not successfully proved SH as there had been no proof of consequences related to employment. The decision was later reversed by the appeals court providing that; SH constitutes a form of sex discrimination in the terms, conditions or privileges of employment in a situation where the employer creates or condones a substantially discriminatory work environment. The court further provided that this is regardless of whether or not the complainant loses any tangible job benefits.

As such MacKinnon (2001) argues that SH law is judge-made law. Therefore, unlike other forms of laws, SH was not a creature of legislature. Civil rights movements and women’s movements laid down its foundation. This paved the way toward both its social and legal proscription (Conaghan, 1996: 409). Accordingly, the prevalence of SH has also inspired several literary works with various authors putting out informative works surrounding the phenomenon of SH. Keplinger et al. (2019) put societal movements at the forefront of the different groups that have been most vocal about SH to address the issue as faced by women in the workplace. Some examples of these movements are the #MeToo movement and the #TimesUp movement which provided a platform for women such as those who were the victims of Harvey Weinsten to come forward with their accounts (Ghosh, 2022).

South African context

South Africa as a Republic is founded on the values and ethos of human dignity, the achievement of equality and the advancement of human rights and freedom (section 1(a) of the Constitution). As such, section 9(3) of the Constitution read with section 9(4) prohibits the state and individuals from engaging in any discriminatory conduct. Section 9(3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Section 9(4) states that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). This entails that any conduct that is intended to discriminate against a person on any of the listed grounds including sex and gender is prohibited. Likewise, any conduct that creates a hostile and discriminatory work environment violates section 23(1) of the Constitution which provides that everyone has the right to fair labour practices.

Since SH has the propensity to perpetuate discrimination, it is thus prohibited in terms of the above provisions. Even in the early days of the Constitution, SH was regarded as a form of discrimination based on sex. Snyman-van Deventer and De Bruin (2002) argue that any discrimination based on section 9 of the Constitution provides sufficient proof of discrimination on any grounds listed in the section is unless proven to the contrary. At the same time, despite the Constitution paving a legal ground on the enactment of laws regulating the prevention of SH, it was the courts in South Africa that laid the foundation for SH law. Hence, a brief history on SH law in South Africa is necessary.

As already discussed in the introductory section of this article, SH cannot be confined to a single definition. Various countries have so far come up with a variety of definitions as to what conduct constitutes SH. In South Africa, the case of J v M ((1989) 10 ILJ 755 (IC)) is considered the leading case on SH. In this case, a senior executive was accused of sexually harassing an employee by fondling her breasts. The senior executive had been warned about his behaviour. He was found guilty and resigned, he withdrew his resignation and was eventually dismissed. He appealed the dismissal to the then Industrial Court (IC) and the court found him guilty. In defining SH, the IC relied on Mowatt’s (1986: 637) definition and defined SH as

“In its narrowest form sexual harassment occurs when a woman (or a man) is expected to engage in sexual activity in order to obtain or keep employment or obtain promotion or other favourable working conditions. In its wider view it is, however, any unwanted sexual behaviour or comment which has a negative effect on the recipient”. (J v M, 1989: 757).

Sutherland (1992) alludes that the court in J v M also relied heavily on the EEOC Guidelines on Sexual Harassment in its definition of SH by recognising the fact that SH can occur in different forms. Sutherland’s assertion holds merit because in post-J v M, the wrong known as SH was incorporated into legislation. The 1998 Code elaborated on the definition of SH as follows (Item 3(2) of the 1998 Code), sexual attention becomes sexual harassment if:

(a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

(b) The recipient has made it clear that the behaviour is considered offensive; and/or

(c) The perpetrator should have known that the behaviour is regarded as unacceptable.

Echoing the context of the EEOC Guidelines on Sexual Harassment, the 1998 Code set out the various forms of SH (Item 4, discussed in the introductory section of this article). Item 5 of the 1998 Code made provision for guiding principles to prevent SH in the workplace similar to EEOC Guidelines on Sexual Harassment sec 1604(d) and (e). Item 5 read as follows

“Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised, or fear reprisals”.

Similarly, the 2005 Code contained provisions on the prevention of SH in item 6. The importance of the 2005 Code is apparent in the case of Rustenburg Platinum Mines Ltd v UASA OBO Steve Pietersen and Others ((2018) 39 ILJ 1330 (LC)), the case involved an ex-employee, Steve Pietersen, who was dismissed by Rustenburg Platinum Mines Limited (The applicant) for misconduct related to sexual harassment. Pietersen was accused of harassing a subordinate employee (Ms Kgole) who at the time was employed as a Boiler Maker by the applicant. A disciplinary inquiry was convened and resulted in the dismissal of Pietersen, who aggrieved by the sanction, approached the CCMA through his union, UASA. The CCMA ruled in his favour and the applicant took the matter on review. Of importance was that in ruling in Pietersen’s favour the CCMA Commissioner held that

“I am persuaded that the Applicant had made sexual advances towards the victim, but that however, he was encouraged to continue doing so, by the docile conduct of the victim and consequently that, such conduct did not amount to unwanted sexual harassment” (Rustenburg case para 1).

In ruling in favour of the applicant and setting aside the CCMA’s ruling, the court relied on the provisions of the 2005 Code and reasoned as follows

Item 3 of the 2005 Code deems sexual harassment as a form of unfair discrimination within the ambit of Section 6 of the Employment Equity Act 55 of 1998. Item 4 sets out the test for sexual harassment, whilst Item 5 outlines the factors to establish sexual harassment (Rustenburg case para 29).

Further that sexual harassment, as per the test formulated in the 2005 Code requires unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account a variety of factors. On the plain reading of Item 4 of the 2005 Code, there is no requirement that the accused employee must have been aware or should have reasonably been aware that his or her conduct was unwanted, or that the recipient must have made it clear that the behaviour is considered offensive (Rustenburg case para 33).

Finally, the 2022 Code has consolidated all forms of harassment in the workplace and is enacted to give effect to the Violence and Harassment Convention and Recommendation 206 which takes into account the dangers of workplace violence and harassment in perpetuating gender-based violence, harassment and inequalities within the work environment. The 2022 Code is discussed in detail below.

The prevalence of SH and regulatory frameworks on SH in the workplace in South Africa

The prevalence of SH in South Africa

In South Africa, the prevalence of SH stems from the high levels of gender-based violence (GBV) within the society at large. The Presidential Summit Declaration Presidential against Gender-based Violence and Femicide of 2 November 2018 (Available at https://www.justice.gov.za/vg/gbv/201903-GBV_SummitDeclarationBooklet.pdf) hereinafter the GBV Declaration, 2018 provides that the epidemic of GBV and femicide in South Africa is a national crisis. The GBV Declaration, 2018 takes cognisance of the fact that “harmful gender-based stereotypes in media reporting of women’s objectification, men’s entitlement and normative gender roles contribute to fuelling the levels of gender-based violence and femicide”. The extent of GBV is documented in a 2021 survey by Afrobarometer (Dryding and Mpako, 2021) which indicates that the GBV Command Centre received 120 000 calls related to GBV incidences in the first 3 weeks of April 2020. ¹ The survey also revealed that 53,293 sexual offenses were reported between April 2019 and March 2020. According to the South Africa Demographic and Health Survey 2016 (National Department of Health (NDoH), Statistics South Africa (Stats SA), South African Medical Research Council (SAMRC), and ICF, 2019. South Africa Demographic and Health Survey 2016. Pretoria, South Africa, and Rockville, Maryland, USA: NDoH, Stats SA, SAMRC, and ICF. Available at https://dhsprogram.com/pubs/pdf/FR337/FR337.pdf) domestic violence is also prevalent in South Africa and such conduct was depicted in the following patterns during the period under study; partner violence (26%), controlling behaviours (19%) and injuries due to partner violence (37%).

A study conducted by the South African Human Rights Commission (SAHRC) between 2013 and 2017 likewise indicates that GBV is more prevalent against women and girl-children and the LGBTI community (SAHRC Research Brief on Gender and Equality in South Africa 2013 – 2017). Further the highest forms of unfair discrimination in the workplace in South Africa are racism and SH (SAHRC Research Brief 2013-2017: Para 5.3). Vettori and Nicolaides (2016) reveal that in the hospitality industry, female employees are often subjected to improper advances by male guests ranging from jokes to suggestions and even assault. Further managers in restaurants often instruct female employees to be flirty with customers and reserve better shifts and tables for waitrons who will be willing to dress a certain manner (Vettori and Nicolaides, 2016: 3). As a result, the Report of the SAHRC: National Hearing on Unfair Discrimination in the Workplace (SAHRC Report on Workplace Discrimination, 2016) indicates that despite the absence of data on the cases of SH in the workplace, SH constituted the highest number of complaints received by the CCMA ² over the past four financial years.

Accordingly, Govender (2023), argues that the prevalence of GBV including SH is a result of the power imbalance between men and women and the articulation of gender roles within the society. The SAHRC Report on Workplace Discrimination, 2016 (SAHRC Report on National Hearing on Unfair Discrimination in the Workplace – South Africa. Available at https://www.sahrc.org.za/home/21/files/SAHRC_-_Unfair_Discrimination_in_the_Workplace_Report_September_2017.pdf) also reveals that SH is disproportionately based on gender relations. As such SH tends to perpetuate gender stereotyping and enables the dominant characteristics of men and the submissive nature of women (Mutinta, 2022). In the case of Gaga v Anglo Platinum Ltd and Others ([2012] 3 BLLR 285 (LAC)), the appellant (Mr Gaga) was employed by the first respondent as a Group Human Resources Manager, with responsibility for “people development”. The appellant was dismissed for sexually harassing the complainant (Ms Makosholo) his assistant who had only revealed during an exit interview that she was sexually harassed by the appellant for 2 years. In rejecting the appellant’s appeal against his dismissal, the court held that

“Sexual harassment by older men in positions of power has become a scourge in the workplace. Its insidious presence is corrosive of a congenial work environment and productive work relations. Harassment by its nature will steadily undermine the supervisory authority vested in the superior, upon which the employer perforce must rely, and hence will diminish or even destroy the trust requisite in the employment relationship; ultimately justifying the imposition of the sanction of dismissal” (Gaga case para 48).

The above statistics and discussion show that GBV and SH are widespread and there is an urgent need to curb such a scourge to promote the right to equality and non-sexism (Section 1 of the Constitution).

The regulatory frameworks on SH in the workplace in South Africa

SH remains a persistent issue in the work environment. The continued existence of SH can be credited partially to the inefficient implementation of the measures that have been adopted to prevent/curb the scourge of SH. This is due to harassment policies being poorly implemented or ignored by some employers and/or employees being unaware of such policies. In the Gaga case, the complainant “testified that she had not been aware of the sexual harassment policy until it was brought to her attention in the exit interview by Ms Mogaki. On reading the policy she felt offended and embarrassed and chose the following day for the first time to make a complaint of sexual harassment against the appellant” (Gaga case para 11). On the other hand, it is a result of prevailing moral factors within the society and work environment as discussed below. At the same time, countries of the world including South Africa have promulgated various laws aimed at addressing the issue of SH consistent with international law. A good example of an international law that has had a great impact in curbing gender discrimination is the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 (CEDAW) (UN General Assembly, 1979).

Furthermore, the convention requires that the countries that elect to ratify it formulate legislation that will ensure that there is a protection of the enjoyment of rights and freedom of women in the same manner that men enjoy them (CEDAW art 2(b)). In article 5, the CEDAW endeavours State parties to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, to achieve the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. To this end, the phenomenon of SH is implicitly prohibited in terms of the CEDAW. Furthermore, article 2(b) of the Declaration on the Elimination of Violence against Women of 1993 (UN General Assembly (1993) Declaration on the Elimination of Violence against women. Available at: https://www.refworld.org/docid/3b00f25d2c.html) provides that violence against women shall be understood to encompass, but not be limited to, the following physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.

As indicated earlier, taking its cue from international law, South Africa recognises SH as a form of gender discrimination as envisaged in sections 9(3) and 9(4) of the Constitution; these provisions prohibit any form of discrimination including gender discrimination. However, defining exactly what actions constitute SH has not been an easy task in a South African context (Nana, 2018). Nana alludes that the actions may range from, but are not limited to, gender-based insults or punishments or even conduct that is non-verbal (Nana, 2018: 246). However, South Africa’s ratification of the Violence and Harassment Convention in November 2021 indicates that SH is indeed a form of gendered harm/gender discrimination. Article 1 of this Convention provides that for this Convention:

(a) the term “violence and harassment” in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;

(b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.

The Convention further endeavours state parties to respect, promote and realize the right of everyone to a world of work free from violence and harassment including the adoption of national laws and gender-responsive strategies to eliminate elimination of violence and harassment in the world of work (Article 4(1) and (2) to the Violence and Harassment Convention). The envisaged approach is multi-pronged and includes;

• prohibiting in law violence and harassment;

• ensuring that relevant policies address violence and harassment;

• adopting a comprehensive strategy in order to implement measures to prevent and combat violence and harassment;

• ensuring access to remedies and support for victims;

• providing for sanctions

The Violence and Harassment Convention has culminated in the enactment of the 2022 Code in South Africa. The preamble of this Code provides that

This Code of Good Practice is intended to address the prevention, elimination, and management of all forms of harassment that pervade the workplace. It is guided by the ILO Convention 190 and its Recommendation concerning the elimination of Violence and Harassment in the World of Work 2019, the Discrimination (Employment and Occupation) Convention 111 of 1958 (Convention 111); and the ILO Convention 151 relating to Occupational Health and Safety.

To this end in South Africa, legislative frameworks have been used as a tool to address SH in the workplace. Some examples of these are the 2005 Code, the Employment Equity Act 55 of 1998 (EEA) and the Labour Relations Act 66 of 1995 (Labour Relations Act 66 of 1995 No. 1877 13 December 1995: Office of the President) hereinafter the LRA, the Constitution of the Republic of South Africa, 1996 (the Constitution) and most recently the 2022 Code. These legislative frameworks are briefly discussed in order to give context to their role in addressing the phenomenon of SH in the workplace.

The employment equity act 55 of 1998 and the code of good practice on the handling of sexual harassment cases in the workplace of 2005

According to section 1(a) of the Constitution, the two main fundamental principles that underpin the Constitution are equality and dignity. Section 39(1) further provides that when interpreting the Bill of Rights, there must be a promotion of the primary values of equality, dignity and freedom. Although the rights contained in the Bill of Rights can be limited in some instances, section 36 of the Constitution provides that the limitation must be reasonable and justifiable in a democratic society that is based on human dignity and equality. Taking into account these provisions, SH in its entirety strips the victim of their right to equality and dignity which contravenes the provisions of the Constitution that guard against it. To this end, the purpose of the EEA was to ensure that the right to equality and human dignity as entrenched in sections 9 and 10 of the Constitution is protected within the context of section 23 of the Constitution. The EEA has two main objectives namely;

• Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

• Implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups (A designated group means black people, women, or people with disabilities) to ensure their equitable representation in all occupational categories and levels in the workforce.

In this article, the focus is on the first objective which is aimed at prohibiting unfair discrimination. The EEA prohibits, amongst other grounds, discrimination based on sex and gender (section 6(1) of the EEA). The Act also provides that sexual harassment of an employee in its nature constitutes a form of unfair discrimination whether it be based on one or multiple grounds mentioned in section 6(1) mentioned above (section 6(3) of the EEA). As such, the EEA prohibits SH in the workplace. Zalesne (2001) argues that the EEA brought about a positive stance on the issue of SH by recognising that SH is a serious problem within the work environment and placing the burden of proof on the employer to prove that anti-sexual harassment measures were adopted. Kubjana (2020) further states that the EEA penalises employers who retaliate against the victims of SH or who fail to act on reported complaints. In this instance, section 60 of the EEA imposes a form of vicarious liability on employers who fail to adopt and act on incidences of SH.

The 2005 Code provides clarity on what constitutes SH by defining SH as ‘unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace’ (item 4 of the 2005 Code). Item 7.1 of the 2005 Code requires that every employer adopt a SH policy in line with the provisions of the Code. Furthermore, item 7.2 requires that the contents of the policy in question be communicated in detail to all the employees. In order for the workplace SH policy to be of any value it is important that the policy be implemented effectively (Joubert et al., 2011). Fusilier and Penrod (2005) refer to a survey conducted in South Africa that reflected what the outcome is in a situation where a SH policy is implemented effectively in a workplace. According to the authors, the survey was conducted on the staff members of an institution of higher learning. It was revealed that 97.8% of the surveyed staff members were aware that their workplace had a SH policy in place. Ultimately, more than 80% of the surveyed staff members claimed that the policy was an effective tool for reducing harassment (Fusilier and Penrod, 2005: 50). Another legislation that can be consulted when dealing with matters about SH is the Promotion of Equality and Prevention of Unfair Discrimination of 2000 (Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, 9 February 2000, Government Gazette No. 20876: Office of the Presidency), hereinafter PEPUDA, which defines harassment as:

‘unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to- (a) sex, gender or sexual orientation,’ (Section 1 of PEPUDA).

Section 8 of PEPUDA prohibits all persons from discriminating against another person on the grounds of gender. Section 5 of the EEA makes it a requirement that every employer take measures to ‘promote equal opportunity in the workplace through the elimination of unfair discrimination’ through any employment practice or policy.

The labour relations act 66 of 1998

One of the purposes of the LRA is to give effect to, as well as regulate the important rights that are granted by section 23 of the Constitution. Section 187(1)(f) prohibits the direct or indirect discrimination of an employee by an employer based on a number of grounds including sex. In an event where an employee has been subjected to sexual harassment emanating from discrimination based on sex or gender, leaving them with no other option but to terminate their contract of employment, they can institute a claim of dismissal on the grounds of operational requirements as provided for in terms of section 186(1)(e) of the LRA.

Section 186(1)(e) of the LRA provides for instances where

“an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

The code of good practice on the prevention of elimination of harassment in the workplace of 2022

The objective of the 2022 Code is to eliminate all forms of harassment in the workplace and any activity linked to or arising out of work. This code is enacted in terms of the EEA with specific reference to section 6(1) and section 6(3) of the EEA and is aimed at eliminating a wide range of acts that constitute harassment. The most glaring aspect is the definition of harassment. Harassment is defined as

Violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse. It includes the use of physical forces or power, whether threatened or actual, against another person or a group or community (item 4.2 of the 2022 Code).

Item 5 of the 2022 Code specifically addresses SH and reads as follows

“Sexual harassment of an employee is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or sexual orientation. Same-sex harassment can amount to discrimination based on sex, gender, sexual orientation, and gender based harassment”

Furthermore, similarly to the provisions of the 2005 Code, items 5.2.1 to 5.2.4 define the term “unwanted conduct” to include amongst other factors the fact that previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be acceptable to the employee and the fact that the complainant does not indicate that the conduct is unwanted does not entail that there has not been sexual harassment if the conduct is such that the harasser/perpetrator ought to have known it could be regarded as unwanted.

These two elements of SH are critical because perpetrators of SH often rely on previous consensual sexual conduct as a defense. Therefore, the above legislative frameworks are crucial in addressing SH in the workplace. Unfortunately, despite there being a magnitude of laws that can come in handy when addressing SH matters, the scourge of SH persists. Furthermore, the legislative frameworks seem silent on the psychosocial harm effect of SH and overly focus on SH as being a form of unfair labour practice and gender discrimination. However, studies indicate that SH like any form of GBV has severe psychological effects on the victims. A study on GBV in 2016 (Gender-Based Violence (GBV) in South Africa: A Brief Review, 2016: 13) revealed that GBV may have the following psychological effects on victims;

• Posttraumatic stress disorder (including nightmares, intrusive memories, flashbacks, numbing, hyperarousal, hypervigilance)

• Major depression (temper outbursts, tiredness, worthlessness, hopelessness, helplessness, irritability, insomnia, restlessness, loss of appetite or overeating)

• Complex trauma (persistent feelings of emptiness, anger, sadness, self-mutilation, preoccupation with the perpetrator)

• Generalised anxiety disorders (overanxious, fearful, constantly worried).

Therefore, taking into consideration the intrusive nature of SH, it is sufficient to conclude that SH can cause psychological harm and as such it should be classified as psychosocial harm. Acquadro-Maran et al. (2002) argue that SH within the workplace threatens the physical, psychological, and occupational well-being of the victim. This leaves victims suffering from depressive disorders and PTSD. In South Africa, the Protection from Harassment Act 17 of 2011 defines “harm” to include mental, psychological, physical or economic harm (section 1 of Act 17 of 2011). Since SH causes physical and psychological harm, it is thus a psychosocial harm.

Factors that exacerbate sexual harassment as a gendered harm in the workplace and their psychological impact

This section of the article explores the factors that exacerbate the impact of SH against women in South Africa. In this instance, relevant literature, studies and case law is examined to show that gender inequality, sexist attitudes and inefficient grievance procedures are contributory factors in the persistence of SH within the workplace.

Gender inequality

As stated above, sections 9(3) and 9(4) of the Constitution prohibit any conduct that discriminates based on gender. However, such prohibition does not entail that women do not suffer discrimination. As a matter of fact, despite the government’s efforts to ensure equal rights between men and women, gender inequality remains rife both within the society at large and the workplace. To this end, the GBV Declaration (2018) provides that “women and gender non-conforming persons are not homogenous groups and are subject to intersectional vulnerabilities exacerbating the inequalities, discrimination and oppression” (GBV Declaration, 2018: 5). Accordingly, GBV in South Africa, is exacerbated by many structural and social drivers such as gender inequality and is deeply rooted in patriarchal norms and cultural practices (Sonke Gender Justice Annual Report, March 2021-February 2022 Available at https://genderjustice.org.za/publication/from-the-desk-of-the-chairperson-of-the-board/). Burn (2019: 97) observes that SH is often a symptom of and a cause of gender and other social inequalities. Vettori and Nicolaides (2016) allude that although gender inequality is an issue that goes beyond the workplace, women within the work environment must be treated well. Adams et al. (2013) argue that SH involves power imbalance and gender inequality. Consequently, women seem incapable of escaping from the clashes of SH due to existing social and gender inequalities and societal norms that perpetuate violence against women (Adams et al., 2013; Zinyemba and Hlongwana, 2022). In the McGregor case, the court held as follows

Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core (McGregor case para 47).

In the Campbell case, the court held that

To the contrary, the unwelcome and inappropriate advances were directed by Mr Simmers at a young woman close to 25 years his junior whose employment had placed her alone in his company and that of Mr Le Roux in rural Botswana. Underlying such advances, lay a power differential that favoured Mr Simmers due to both his age and gender (Campbell case para 27).

Therefore, the scourge of GBV including SH is a result of systematic gender inequality, traditional gender roles and pre-existing toxic social norms that disempower girls and promote masculinity (Buqa, 2022; Enaifoghe et al., 2021).

Sexist attitudes

Environments that tolerate and allow SH to thrive are one of the enablers of SH. According to Gruber (1998: 304), organisational tolerance of behaviour that is sexually discriminatory or offensive leads to the sexualisation of the work environment. Furthermore, environments such as the ones referred to above may cognitively condition some men to see women as sex objects which could result in these men behaving in a manner that is sexist or sexually inappropriate. This provides the perfect breeding ground for SH. Further cultural backgrounds are one of the factors that can be credited for certain instances whereby SH matters go unreported. Buqa (2022) posits that in South Africa, the dominating culture of patriarchy creates a breeding ground for violence against women. This is because cultural and societal norms perpetuate sexist attitudes that normalises gender disparities within the society. Enaifoghe et al. (2021: 137-138) state that such social norms promote gender stereotyping and the acceptability of violence especially against women.

According to the Report of the Special Rapporteur on Violence against women, Its Causes and Consequences on her mission to South Africa, 2016 (UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa, 14 June 2016, A/HRC/32/42/Add.2, available at: https://www.refworld.org/docid/57d90a4b4.html) it was noted that the violence against women and children emanates from deeply entrenched patriarchal norms and attitudes towards the role of women and which makes violence against women and children, especially in rural areas and in informal settlements, a way of life and an accepted social phenomenon (2016 Special Rapporteur on violence against women, para 7). Flowing from this, it is not surprising that SH is made up of three vital dimensions as seen above namely; gender harassment, unwanted sexual attention and sexual coercion (Burn, 2019; Fitzgerald et al., 1995: 430–432). These factors inform the prevailing power inequalities within gender relations that frequently favour men and thus enable patriarchal attitudes (Zinyemba and Hlongwana, 2022). Therefore, SH as a form of gender discrimination is underpinned by the sexist ideology of male dominance and male superiority (Adams et al., 2013: 1153).

Inefficient grievance procedure

SH in the workplace is frowned upon and condemned as sex discrimination and a violation of human rights internationally (Hersch, 2005). Gruber (1988: 304) observes that in workplaces where employers have taken measures to address issues about SH by either discouraging or speaking about it, occurrences of SH have been less frequent. Unfortunately, previous studies suggest that in some instances, grievance procedures may backfire (Dobbin and Kalev, 2019: 12255). As a result, people who file grievances frequently face retaliation and victims rarely see their harassers fired or reassigned. Further, that it is not enough to simply provide employees with information regarding SH; proactive strategies are necessary to combat the issue. Proactive strategies should be utilised intentionally with the eradication of SH being the focal point.

According to Hemel and Lund (2018: 1678), the problem of SH is so prevalent and pervasive that multiple policy tools may have to be employed in order to eradicate the issue. Further instead of using legislative action to draft polices that will deal with sexual misconduct in the workplace, corporate law should be considered to deal with the issue without changing statute that already exists. This suggestion by the authors does not seem far-fetched because despite legislation being around for years, SH remains highly active in the workplace. The use of corporate law as one of the tools employed to eradicate the issue of SH in the workplace is an avenue worth exploring. The sentiments above are true because in South Africa SH regulatory frameworks have been promulgated for years and still SH persists. Although data on the statistics on SH is not readily available, the studies by the SAHRC and other related surveys as shown above indicate a very dire situation. In 2018, the Research Agency Columinate (Culminate (2018) ‘Dismaying’ level of sexual harassment in corporate SA – survey’ Available at https://www.news24.com/fin24/dismaying-level-of-sexual-harassment-in-corporate-sa-survey-20180901-2) conducted a survey on SH in South Africa and the statistics painted a gloomy picture. Some of the findings were as follows;

• 30% of women and 18% of men reported having been victims of unwanted sexual advances in the workplace.

• 57% of women, and 47% of men claimed that the unwanted advances came from a workplace peer.

• 26% of women report that a boss or superior is the source of the harassment

• 39% of men, and 22% of women kept quiet about their abuse.

• Only 16% of respondents reported the incident to HR, while 10% of respondents reported it to the authorities.

In so far as the grievance procedures operated, the survey indicated the following;

• 51% of workplaces do not have a clear sexual harassment policy in place.

• Only 37% of organisations have a clear process to report sexual harassment.

• 20% of businesses employ a reporting hotline, with another 20% offering training on eliminating sexual harassment in the office.

Although, this may be an isolated study, when read with the statistics shown above and case law, it is clear that SH laws are not efficient in the absence of formalised and effective grievance procedures. To this end, an effective SH policy should be worded, readily displayed at strategic points and regularly evaluated to ensure that it remains effective (Joubert et al., 2011). Smit (2021) further alludes that a SH policy should go beyond mere guidelines, and include punishment for non-compliance. Item 9 of the 2022 Code attempts to heed the call for efficient grievance procedures by requiring that SH policies be communicated to all employees, policies should contain statements on how grievances should be handled, that victimisation of complaints is an offence etc. The guidelines on SH policies also provide that employers who do not comply with these provisions will be held vicariously liable (item 10.3 of the 2022 Code). This is important because recent case law indicates that some workplaces have no SH policies and/or such policies are not complied with. In the case of PE v Dr Beyers Naude Local Municipality and Another (2022 (1) SA 560 (ECG)), the complainant was sexually assaulted by her immediate supervisor who forcibly kissed her after having previously made sexual advances and comments. The complainant subsequently resigned due to the poor manner, the grievance was addressed within the Municipality. Unfortunately, the case took years to be resolved with the Municipality having offered the complainant her job back at some point. The complainant resigned in 2010 and the case finalised in 2021. During the court proceedings, the court found out that

“There was no evidence that the Municipality had in place a sexual harassment policy as required by law at the time that the assault occurred which meant that the Municipality had no direction or clarity as to the rights of an employee who has reported an incident of sexual harassment and what assistance was available to her. here were also no procedures in place either in respect of the alleged victim or the alleged perpetrator and no disciplinary sanctions were stipulated to be imposed in the event that an employee was to be found guilty of sexual harassment” (Beyers case para 20).

In condemning the lack of SH policy and procedures, the court held as follows;

“Thus the woman, whose personhood and dignity had only two days earlier been so egregiously violated by her male superior who was unable to control his base sexual urges, found herself in the humiliating and degrading position where she had to account to her assailant and where her assailant was seeking to reinforce his control over her by cynically interrogating the reasons for her absence in what I regard as a show of toxic masculinity exacerbated by the power imbalance between the two” (Beyers case para 23).

In another case of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others ((2022) 43 ILJ 825 (LAC)). The complainant was sexually harassed by (third respondent), Mr Justinus Mabetoa, who was employed by the appellant at the time. Mr Mabetoa was subsequently dismissed after a disciplinary hearing. He sent the award for review and the arbitrator substituted the award with a “final written warning” as the dismissal was substantively unfair. The appellant decided to have the order reviewed at the Labour Court and Mr Mabetoa also submitted a cross-review which was upheld and the order of the arbitrator was declared irregular. The appellant then appealed to the Labour Appeal Court (LAC). The court in finding the dismissal fair held that

“There was no dispute that the third respondent had been aware of the rule and that such rule had been inconsistently applied by the appellant. The fact that he was employed to provide public services to members of the public and acted in a position of some authority over the complainant illustrated the seriousness of the misconduct and his abuse of his position. It was relevant that he did not unequivocally accept wrongdoing or express any remorse for his conduct” (Ekurhuleni case para 35).

In this case, it would seem that the policy on misconduct including SH was inconsistently applied by the appellant and Mr Mabetoa sought to take advantage of this fact. Hence, it is insufficient for SH policies to be in existence, their relevance and efficiency lie in their implementation and enforceability (Smit and Viviers, 2016: 55).

The psychological effects of sexual harassment as a gendered harm

Not only does the SH of women in the workplace create an environment that harbours feelings of insecurity, it also has the effect of creating a hostile environment (Geetha, 2012). This results in women being discouraged from taking part in work activities. Furthermore, their social and economic empowerment and goal of inclusive growth were affected in the process. According to Lunenburg (2010: 3-4), SH in the workplace may have the further effect of making the workplace environment incapable of being bearable. Lunenburg indicates that this could further escalate to an extent where the victim develops habits of either going to work late or completely staying away from work, or they could even end up looking for employment elsewhere.

Employees who have been victims of SH may become too reluctant to define their encounters as those of SH as they may desire to be seen as fully competent team players (Welsh, 1999: 174). Thus, SH does not only have an effect on a victim’s personal life, but further damages their abilities and dignity to a great extent (Singh, 2016). To this end, Hébert (2018: 44–48) argues that SH has both collective harm and individual harm implications on the right to equality and human dignity. In the Beyers case, the court held that

“I also need to take into account that in order to sustain employment E would need to secure employment with a sympathetic employer given that her psychiatric and psychological impairment has negatively affected her ability to tolerate stress with the result that any employer will have to be accommodating and sensitive to her condition…. Because she is vulnerable she will not be an equal competitor in the open market. Even if she secures employment it may also be that if she is treated differently, and more sympathetically, by her employer this could cause disharmony in the workplace and may negatively affect her job security once having attained employment” (para 154).

In the Ekurhuleni case, the court held that

“Furthermore, the evidence as to the harm caused by such misconduct was clear, with the complainant stating that it had had a negative impact on her life and that she had suffered psychologically as a result” (para 35).

The discussion above points to the fact that SH is a psychosocial harm that requires efficient regulation through labour laws. Blanco-Donoso et al. (2020) define psychosocial risk factors as “those aspects of work design and the organization and management of work, and their social and environmental contexts, which have the potential for causing psychological, social or physical harm”. Thus, it suffices to deduce that psychosocial harm is harm that is brought about by the existence of psychosocial hazards and/or risk factors in the work environment. Fitzgerald and Cortina (2018) assert that sexual harassment experiences have a significant and substantial impact on women who have been harassed and this results in such women having significantly lower levels of general psychological well-being as well as elevated symptoms of post-traumatic stress. Avina and O'Donohue (2002: 70) taking their cue from Fitzgerald et al. (1995) define sexual harassment as “unwanted sex–related behaviour at work that is appraised by the recipient as offensive, exceeding her resources, or threatening her well-being”. As such, SH diminishes, dehumanizes, and disempowers its targets, which leads to emotional and physical stress and stress-related mental and physical illnesses, including post-traumatic stress disorder (Burn, 2019: 96). In this context, SH has the effect of causing emotional damage that has the propensity to affect a victim’s psychological and psychosocial well-being.

Therefore, the above observances are a cause of concern as labour legislation (for example the EEA and the LRA) mainly focuses on the unfair discrimination and labour practices of SH and does not explicitly protect the employee’s psychological integrity as envisaged in section 12(2) of the Constitution. This argument is supported by Smit (2021) who argues that the effects of SH call for employers to not only protect employees from the physical aspects of SH but their psychological needs as well. Further the existing labour legislation although capable of protecting employees is rather fragmented and inefficient to cater for the psychosocial needs of employees to SH (Smit, 2021: 47–51). Calitz (2019) also argues that the victim’s psychological well-being including PTSD is often aggravated where disciplinary measures are inefficient against the harasser such as the harasser being not dismissed.

Remedies available to victims of sexual harassment in South Africa

In South Africa, labour legislation does provide redress for employees that are victims of SH. Section 60 provides that

(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

Accordingly, an employer should protect a victim of sexual harassment. The victim must report the SH “immediately”. It seems that the alleged unwanted conduct must be reported without any delay. The 2022 Code imposes a duty on employers to adopt harassment policies that comply with the provisions of the code including sexual harassment policies (item 9 of the 2022 Code).

The LRA also makes provisions for the dismissal of employees that are found guilty of misconduct. Schedule 8 to the LRA (Code of Good Practice: Dismissals) provides for procedures to be adopted before any employee is dismissed on capacity and misconduct. To this end, paragraph 3 of Schedule 8 provides for disciplinary procedures prior to dismissals based on misconduct. Because SH is a form of misconduct, employees found to be sexually harassing others may be dismissed. In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others ([2021] ZACC 14), Dr McGregor, a senior medical practitioner accused of sexually harassing a junior doctor was dismissed for his conduct and he sought to appeal the dismissal and to be awarded 6 months’ compensation for procedurally and substantive unfairness of his dismissal. In rejecting his argument for 6 months’ compensation, the Constitutional Court per Khampepe J in rejecting the award by the Labour Court, held that

These curious misdirections are particularly unfortunate because this matter relates to sexual harassment in the workplace, perpetrated by a senior medical practitioner who has remained unrepentant for his misconduct with apparent oblivion to the fact that his behaviour constitutes the marrow in the backbone of a culture of sexual harassment that plagues this country’s workplaces. Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core. Eradicating the scourge of sexual harassment will be a Sisyphean task if its perpetrators are compensated lavishly for their misconduct (para 47).

This case indicates the seriousness of the phenomenon of SH and the courts’ stance on imposing suitable punishment against perpetrators of SH. The BCEA ensures that employees enjoy safe working conditions but the extent it will provide additional protection to victims of SH is not clear, as the BCEA promotes general fair labour practices in terms of section 23 of the Constitution as covered in terms of the EEA and LRA. Another labour legislation that protects employees is the Occupational Health and Safety Act 85 of 1993 (OHSA), which has among its objectives (Preamble to the OHSA).

• To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery;

• The protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work.

In terms of section 1 of the OHSA the word “health” is defined as being free from illness · or injury attributable to occupational causes. This definition falls short of the psychosocial effects of SH and does not provide any protection to victims of SH as it relates to physical injury.

It is clear that in South Africa SH redress is mostly in the form of prevention. This is most welcome because employees are held accountable for failure to take steps to create a work environment free from violence and harm as envisaged in the Violence and Harassment Convention (Articles 4 and 9). Article 9 provides that each member shall adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender-based violence and harassment, and in particular, so far as is reasonably practicable, to adopt and implement, in consultation with workers and their representatives, a workplace policy on violence and harassment. However, the post-conduct support remedies (Article 10 and Recommendation 206 para 17) are not adhered to within the regulatory framework on the prevention of SH. Additionally, Calitz (2022) argues that awareness campaigns to sensitise employers on risk assessments in respect of harassment in the workplace and in adopting measures to limit psychosocial risks and promoting a safe psychosocial climate in the workplace are necessary. Taking into account the discussion above, it is clear that the psychosocial and psychological impact of SH is not covered in terms of the general labour frameworks in South Africa. This entails that although the prevention requirement as envisaged in the Violence and Harassment Convention is complied with in South Africa, there is a need to include post-conduct victim support remedies within the labour regulatory framework. In an attempt to cure this defect, the 2022 Code provides for psychological harassment (Item 4.7.4 of the 2022 Code). However, the framing of the 2022 Code does not properly integrate psychological harassment with SH or the requisite support for victims of SH. Item 9.6 of the 2022 Code provides that the availability of counselling, treatment, care and support programs for employees should be outlined in the policy. To this end, it is suggested that the government should adopt and/or integrate a new definition of sexual harassment that will recognise SH as a psychosocial hazard/harm. This entails that SH policies should clearly set out the measures to be taken by employers in SH incidences including provision of psychosocial support to victims of SH. This stance was made clear in the case of Media 24 Ltd and Another v Grobler ([2005] 3 All SA 297 (SCA), the court held that

It is well settled that an employer owes a common law duty to its employees to take reasonable care of their safety …. This duty cannot in my view be confined to an obligation to take reasonable steps to protect them from physical harm caused by what may be called physical hazards. It must also in appropriate circumstances include a duty to protect them from psychological harm caused, for example, by sexual harassment by co-employees (para 65).

In this case, the court acknowledged that SH is a psychological harm but did not specify the victim support remedies that employers should provide to victims of SH. Malherbe and Calitz (2016) state that the impact of SH on the victim justifies its classification as a disease in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), since SH results in psychological disablement including PTSD.

Conclusion

This article shows that SH although affecting both men and women, to a greater extent women suffer more from SH incidences. Further, SH as a gendered harm affects female employees more than their male counterparts due to unequal social power dynamics in the workplace. Thus, SH often entails the abuse of male economic power and sexual power to undermine female employees’ economic power, security and personal integrity. As such, SH strives due to gender inequality that exists within the society, sexist attitudes that are often acceptable as part of community and cultural norms and inefficient grievance procedures in many workplaces. All these factors to a large extent favours the male gender and offer them protection even in situations where it is undeserved. It was revealed also that the phenomenon of SH transits beyond the physical harm that the victim suffers but causes emotional and psychological damage that may linger for years. As such, SH must be addressed effectively and efficiently, as it not only violates entrenched constitutional rights but affects the well-being of others. In the workplace, any form of gender discrimination should be abhorred and measures employed to expeditiously address conduct that presents an unwelcome and unfavourable work environment. In South Africa, the existing regulatory measures are preventive in nature which is a positive stance consistent with international law. However, the post-conduct support remedies seem ineffective as indicated through case law and the relevant provisions on employer liability. Taking into account the discussion above some of these psychological effects can be avoided by eliminating SH through improving grievance procedures and ensuring their effectiveness. To this end, this article indicates that to make meaningful progress in the fight against SH, the government should stop addressing the phenomenon of SH as an issue of unfair labour practices and gender discrimination but as a form of psychosocial harm as well. As a result, it is recommended that labour legislation be amended to include psychosocial harm as an integral part of SH. This will ensure that workplace policies on SH are comprehensive and take into account not only the physical needs of victims of SH but also their psychological well-being. A duty will, thus, be imposed on employers to be held liable for failure to eliminate psychosocial risk factors that can lead to SH.