Section 54 (1) of the Employment Equity Act (“EEA”) makes provision for the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The objective of this code is to eliminate sexual harassment in the workplace and to provide appropriate procedures to deal with sexual harassment and prevent its recurrence. An amended Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace came into effect in March this year. The code scope was broadened to deal with a progressively diverse workplace.
Harassment is a form of unfair discrimination in terms of the EEA, which makes provision for the issuing of Codes of Good Practice intended to provide employers with guidelines.
Passive-aggressive behavior, bullying, ostracizing, cyberbullying, career sabotage, and racist, sexist, or LGBTQIA+-phobic rhetoric, to name a few, are now included in the expanded Code of Good Practice. Further, it makes provision that harassment can now be addressed through a formal or informal remedial process, according to the new modified Code of Good Practice.
TEST FOR SEXUAL HARASSMENT
- Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
- Whether the sexual conduct was unwelcome;
- The nature and extent of the sexual conduct; and
- The impact of sexual conduct.
If it is found during the formal or informal remedial process that the form of conduct met one of the requirements above, it will be seen as sexual harassment. The Code of Good Practice affords us guidelines to deal with harassment in the workplace.
Employers are now encouraged to have a zero-tolerance policy regarding workplace harassment under the new law. Employers will have a greater obligation to educate their staff about harassment. Even if the harassment is a single event, employers who fail to take the necessary efforts to eradicate it within a reasonable time may be held vicariously accountable for damages.
In May 2021, a High court judgment found the employer and the harasser jointly and severally liable to pay the plaintiff R4 million in damages for their failure to adequately deal with a case of sexual harassment in the workplace. This led to the amended Code of Good Practice in respect of Harassment. It now requires Employers to develop clear systems that will deal with harassment in the workplace. As soon as the employee reports an alleged incident of harassment, the employer will be obligated to investigate the alleged incident and to advise the employee accordingly.
Should you require any legal assistance in respect of sexual harassment in the workplace please do not hesitate to contact us.