Sexual harassment in the workplace has always been discussed as a way of confronting it and raising awareness to the ever-present problem.
By MIRIAM TOSE MAJOME
For as long as men and women work together, it is an issue that will always arise. We will also speak against it and examine how the law can be used to fight against and protect the average working woman and man as well. Women as well as men can also be perpetrators of sexual harassment against other women and men. It is not limited to employers or people in higher ranks but co-workers and even subordinates can commit acts of sexual harassment.
The office jester
Everybody loves Brian. He is a bright cheerful colleague and loves to make people in the office laugh, as he is always ready with a joke or clever quip. His favourite jokes are sex jokes. He is forever talking casually and openly about sex and sexual references, whenever he talks no matter the situation.
Brian doesn’t set out to cause harm. He just thinks he is a funny guy. He doesn’t see how uncomfortable Marie becomes, whenever he talks and that she never laughs or joins in the conversation. He thinks she is just cold and unfriendly and calls her the office Virgin Mary.
He even regularly “advises” her that there are more variations to the missionary position and everybody laughs happily along. Mary always feels embarrassed and tries to avoid Brian, whenever she can but it is almost impossible, as they work closely together. Brian also regularly shares sexually explicit or suggestive images and messages on the group platform. Everybody else including the other women seem to find Brian’s jokes funny and go along with him, except Marie. This makes her feel even worse about herself, as she thinks there is something wrong with her and blames herself for being too uptight.
She has lost her self-esteem and does not know who to tell or what to do. She has heard about sexual harassment but doesn’t know if she is a victim, as Brian has never touched her or sent his vulgar messages personally to her. Marie does not like to cause problems and she needs the job desperately. She keeps her head down, while continuing to feel worse and worse no longer able to concentrate on her work and missing her monthly targets.
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The office flirt
Mai Nhau is the office manager. She is a middle aged, very confident and bold woman. Doug the accountant recently got married and since then she has taken to continually asking him about his marriage and his sex life.
She regularly stands in the middle of the office and ranks the sexual prowess of the young men based on her assessment of their looks. She comments about their bodies and because she is a woman thinks there is nothing wrong with it and that people enjoy it. Doug is very uncomfortable about this, but does not like to appear like a prude among the other guys.
Mai Nhau sometimes wears inappropriately tight and short clothes for her age and on those days struts about the office and lingers around longer than usual. Doug feels offended and doesn’t know whether he has that right. He is educated enough to know that women have the freedom to wear what they like but he does not quite know the extent of these freedoms. Sometimes he gets so frustrated that he often thinks of just quitting and walking out, but he has a baby on the way and needs the job badly.
The above two scenarios are just a smidgen of the typical cases of sexual harassment that take place in workplaces. Both men and women can be perpetrators, as well as victims. Sometimes the harassment is intentional, but sometimes not but still the effect is the same. The outcome is always negative. It causes tension and disaffection in the workplace, which impacts negatively on the work output.
The workplace becomes a hostile and unsafe place and this has a direct bearing on productivity quality and levels. To individual victims it causes loss of self-esteem, diminution of dignity and personal integrity. Sexual harassment is any range of unwanted and unwelcome sexual advances and can be verbal or physical or in the form of innuendos. It takes many forms and can be a once-off encounter or a series of repeated offences including, but not limited to, asking inappropriate personal questions, touching, repeated invitations for dates or sex, making inappropriate sounds or gestures, sending offensive material electronically etc. The list is unexhaustive. The Law
Sexual harassment is an unfair labour practice in terms of Section 8 (g) and (h) of the Labour Act. Employers can demand sexual favours from employees or prospective employees as a condition for any one aspect of the employment. They can be demanded as a condition for recruitment or in the creation, classification or abolition of jobs or posts or the improvement of the remuneration or other conditions of employment of the employee or staffing choices, training, advancement, apprenticeships, transfer, promotion or retrenchment or any other matter related to employment. Sexual harassment usually occurs when someone, typically in a superior position, engages in unwelcome sexually determined behaviour towards any employee.
Remedies
The only remedy is to act and speak out against it. Naming and shaming, but not in a unstructured way. Anyone who feels harassed must always as far as possible protest, confront and communicate their displeasure directly to the perpetrator. In some cases people are ignorant of the effects of their actions. When confronted and told to stop they usually stop and back off. People generally do not want the embarrassment of being accused with sexual harassment, so most people if they are reasonable usually stop whatever they do.
However, if they continue criminal and civil remedies are available against them. If there is a code of conduct it is important to first read what it prescribes. The Labour Act criminalises it and perpetrators can be arrested. If there is a human resources department that should be the first port of call or the immediate supervisor in smaller organisations . Where the employer is the perpetrator the only option is to make a police report after compiling all the facts.
Whichever way, the matter should result in a hearing. At the hearing the victim has a right to be represented either by a lawyer or other worker representatives. It is important to have all the facts and evidence if its available, as charges of sexual harassment can be very hard to prove.
The victim must do some research and be conversant with the elements of sexual harassment in order to avoid making unsubstantiated allegations. If there are witnesses their cooperation must be obtained first, because it could affect their job security.
The perpetrator can be arrested and victims can claim damages in the civil court. A conviction of sexual harassment is a serious criminal offense, which should result in termination of employment for the perpetrator.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
