Harassment and discrimination complaints are among the most complex and difficult issues for a business owner, senior manager or HR professional to address. While the topic is of a sensitive nature for all parties concerned, businesses must act quickly and professionally when a case of harassment or discrimination is opened in order to resolve the matter in a way that’s satisfactory to the employee presenting the complaint, while at the same time protecting the integrity of all parties concerned.
Having recently been on a panel at the Talent Agenda Series (hosted by Global Careers Group and sponsored by Hogan Lovells), Jean Ewang, partner at Hogan Lovells, spoke on the topic of harassment in the workplace and why we need better awareness of it across the board.
In the case of sexual harassment, the '#MeToo' global movement has highlighted the systemic nature of this behaviour not just in entertainment, but in a number of industries and across all walks of life. Even new tech companies are not excluded, as we saw mass walkouts recently for various discrimination concerns. But what is happening closer to home in Africa? Does the lack of reporting or available statistics mean that harassment is less common or, are their societal and cultural precepts that make it less acknowledged?
According to Phetheni Nkuna, senior associate at Hogan Lovells, conduct amounting to sexual harassment has a strong relation to bullying, often making use of force, threat, and coercion to abuse, intimidation, or aggressively applying dominance of another in order to influence their modus.
“There have been instances where a superior, peer, or subordinate makes comments or proposals suggesting engagement in sexual activities in order to gain advantage or benefit of some sort,” explains Nkuna. “Most often, when the employee refuses these advances, the result is that they are subjected to hostile treatment, often sabotaging the victims’ environment in order to reduce their productivity and work efficiency.”
Section 6(3) of the Employment Equity Act provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one. Section 60 places a duty on the employer to protect employees against harassment. It further states that if an employer has knowledge of this type of unacceptable conduct, they have the right and are obligated to take steps against the perpetrator as it is the company’s duty to provide a safe work environment.
The vast majority of grievances lodged at the Commission for Conciliation, Mediation and Arbitration (CCMA) on the basis of unfair treatment relate to sexual harassment.
In a recent 2018 survey conducted among 1000 urban South Africans by Columinate, it was found that about a third of South African women and 18% of its men have been victims of unwanted sexual advances in the workplace.
About 40% of men and more than 20% of women kept quiet about their abuse. About a third of men (30%) feared that no one would believe them when they made the allegation, while 29% of women did not report it because they did not believe management would do anything about it.
According to the survey, more than half (51%) of workplaces do not have a clear sexual harassment policy in place.
To prevent and manage harassment of any kind in the workplace, companies must adopt functional workplace policies that create both awareness and transparency. These polices must be communicated effectively to staff, and employers must ensure that they act on policies and procedures related to sexual harassment cases and investigate each complaint based on its own merits. Where harassment has been proven, companies must take the relevant action to ensure they are not caught foul of the law, but also to protect their staff and their business integrity.
Ewang says that in the case of sexual harassment in South Africa, an employer is obligated to consult with all relevant parties in the instances of a complaint, and address it according to the guidelines in the Amended Code of Good Practise on the Handling of Sexual Harassment. Failure to do so may open the employer up to litigation or criminal charges.
“The employer has a duty not only to deal with complaints of harassment committed by its employee, but also by outsiders committing an act of harassment towards one of its employees at the workplace,” clarifies Ewang.
“Equally, the Employment Equity Act (EEA) highlights that should an employer fail to fulfil its obligations, and that the perpetrator is proven to have committed an act of sexual harassment, then the employer is deemed to have committed the act.”
Ewang says significant damage claims have been awarded by courts in favour of those who have been victims of workplace sexual harassment, particularly in the areas where the employer has been found to have failed their obligation in terms of the EEA.
Ewang advises that employers comply with obligations imposed by the law to ensure that they do not end up paying for damages as a result of the improper behaviour of their employees.
Companies should be mindful that not all harassment cases can be dealt with in the same blanket-type method. There are a number of dynamics at play, and each complainant or victim reacts differently to their given situation. As such, each case requires individual attention, and dealt with on its own merits in a manner that ensures the dignity of the complainant or victim remains intact.
All businesses, whether an SME or large pan-African corporate, are urged to foster an environment free from unlawful harassment, to vigorously investigate complaints of harassment, and to take prompt and effective remedial and disciplinary action if harassment is found.
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