SEXUAL HARASSMENT: SOME DILEMMAS

As my colleague Greg keeps reminding me, “Truth is stranger than fiction”. Many of the sexual harassment factual scenarios that are presented to me by my clients seem inconceivable. I say “inconceivable” because it is hard to imagine that these events do indeed take place. This too is reflected in some of the case law: a manager who when accused of caressing a female employee’s buttocks defends himself on the basis that he has been no more than “flirtatious or Mediterranean”; a male employee coercing a female employee to look at a Hustler magazine and a male employee who became so obsessed with a female colleague that he set up a tent on the pavement of the flats where she lived. And although these examples appear on the face of it humorous, sexual harassment is no laughing matter.

What behaviour constitutes sexual harassment?
The Labour Relations Act contains a Code on the Handling of Sexual Harassment Cases. The Code describes sexual harassment as unwanted conduct of a sexual nature.

Sexual attention, the Code states, becomes sexual harassment if:

• The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment;
• The recipient has made it clear that the behaviour is considered offensive;
• The perpetrator should have known that the behaviour is regarded as unacceptable.

Sexual harassment is also sometimes described in terms of the effect of the harassment:

• Quid pro quo sexual harassment occurs when for example a manager offers a promotion in return for sexual favours.
• Hostile working environment sexual harassment occurs when an abusive working environment is created as a result of the harassment. This could, for example, be in the form of jokes or innuendo or propositions.

How do I as an employer determine who is telling the truth?
This is by far the most difficult aspect in sexual harassment cases. Invariably, although not always, the perpetrator is a male in a position of power or authority and the person harassed is a female in a subordinate position. In my experience it usually takes a while for the female employee to pluck up the courage to raise the harassment with her employer and when she does the perpetrator simply denies the allegations against him. When this happens the employer is then required to determine, usually at a disciplinary enquiry, whose version is more probable as third party corroboration is unlikely. In deciding whose version is more probable one would consider the credibility of the parties, inconsistencies in their evidence, the reason advanced by the alleged perpetrator for the false allegations made by the complainant and the detail provided by the employee allegedly harassed. This is sometimes a difficult task for employers who are not trained lawyers. If so, you may want to consider bringing in a lawyer to sit as the disciplinary enquiry chairperson.

What do I do if the complainant is lying?
Sometimes complainants do lie, for example, they are poor performers and want to avoid a dismissal or they had hopes of a relationship with the alleged perpetrator and these have been thwarted. Frequently the employer’s fear is that if the complainant turns out to have lied then their manager’s credibility and reputation are sullied by a suspension and an enquiry even if the alleged perpetrator is later found not to have harassed the complainant. Of course the employer would be entitled to discipline the complainant for lying but this is likely to only be after the damage is done. My suggestion would be to do a confidential investigation before a decision is taken to commence disciplinary proceedings. All that this means is that the complainant and the alleged perpetrator are questioned separately and in confidence. At least this gives the employer an opportunity to get some sense of the matter before making a decision to initiate disciplinary proceedings.

What risks do I as an employer run if I do not do anything about the alleged harassment?
Firstly, the complainant can resign and allege a constructive dismissal. A constructive dismissal occurs when the employer makes the continued employment of the employee intolerable. The Employment Equity Act specifically provides that harassment of an employee is a form of unfair discrimination and consequently the complainant may allege a discriminatory dismissal which puts the employer at risk of a compensation award of up to a maximum of twenty four months remuneration. Secondly, the complainant may institute proceedings in terms of the Employment Equity Act against the employer and/or the perpetrator on the basis of unfair discrimination. Here the court may make any “appropriate order that is just and equitable in the circumstances” and no limit is placed on the amount of compensation that may be awarded. Lastly, the complainant may institute a delictual claim against the employer on the basis of the employer’s vicarious liability for the conduct of the perpetrator. Here too there are no limits on the damages or compensation to be awarded but the complainant would be required to prove the damages claimed. However, a court is only likely to hold an employer vicariously liable if the employer knew about the harassment and failed to do anything about it. Claims of this nature are becoming more prevalent as is evidenced by the matter of Sonja Grobler and Naspers where the court ordered Naspers to pay Ms Grobler compensation of R150 000.00, damages for her past and future medical expenses, past and future loss of income and her legal costs. I understand though that the matter is going on appeal so it will be interesting to how the court deals with the matter then.

With these kinds of risks employers would be well advised to have a sexual harassment policy in place. Personally I prefer policies that provide alternatives to holding a disciplinary enquiry as, interestingly, not all complainants want the perpetrator dismissed but they do want the harassment to stop. Of course the seriousness of the harassment plays a role in determining which route to go. For example it would be wrong not to dismiss a perpetrator in a case of, for want of a better term, “sexual assault”. Also, a policy that provides alternatives assists employers with those matters where the complainant refuses to give evidence at a disciplinary enquiry.