Sexual harassment at the workplace

In recent times, an increasing number of complaints concerning issues of sexual harassment in the workplace have been brought to my attention. A very recent and extremely disturbing report by an employee has led me to conduct some thorough socio-legal research on the issue. The findings I will like to share with you this week.

Definition of Sexual harassment

The International Labour Organization (ILO) has clearly outlined a working definition as to what is to be considered sexual harassment.{{more}}This has been reflected in the European Commission Recommendation on the Protection of the Dignity of Men and Women at work, and states, “sexual harassment at work is any form of conduct of a sexual nature, affecting the dignity of women and men, in circumstances whereby: such conduct is unwanted, unreasonable and offensive to the recipient; such conduct is used as a basis for employment; and/or such conduct creates an intimidating, hostile, or humiliating work environment for the recipient.

The causes of Sexual Harassment

Justice Stockdale writing extra judicially on matters concerning sexual harassment at work outlined firstly, that a biological deficiency in certain men in controlling their sexual desires is one cause of sexual harassment.

Secondly, the impact of the organizational structure at the workplace also provides an insight into matters of sexual harassment. A typical case in point is where a person in a higher position sees it fit and almost natural for them to use their power to coerce lower status individuals, into engaging in sexual interactions. For example, a medical doctor at an institution or a high level manager of a company may see it fit to persist in making unwelcome sexual advances at a clerk or typist, even after she would have made her disgust clear to the advancer. This is actually a flagrant disregard of ones rights to self-autonomy, apparently justified by the difference in power status. This is distressing.

Thirdly, it has been claimed that sexual harassment at the work place may have been so long practiced covertly, that it has evolved into an acceptable and evolving sub-culture. This is indeed cause for great alarm.

What amounts to unwelcome conduct?

An essential part of the proof in matters of sexual harassment is to show that the conduct was indeed unwelcome. The test therefore is whether the victim considers the verbal or non-verbal approach of the aggressor to be unwelcoming. In the case of Wileman v. Minilec Enginerring Ltd the court was clear on the issue that the same conduct done by A, B and C to a single recipient may cause only C to be liable if the victim only sees it as unwelcome as it comes from C.

The acts of the aggressor may take different forms, varying from spoken words or print, to actual physical contact or a combination of various forms of harassment.

In instances where the aggressor is told that his behavior is not welcome but he is persistent in his course of conduct, this actually strengthens the case of the complainer. Furthermore, in an era of great technological advancement, harassing telephone calls, unwelcomed text messages, e-mails of a sexual nature, and voice recordings may provide cogent evidence in the Court once they pass the threshold for admittance into evidence.

It is also important to note that the case law shows that even in circumstances where a person may have befriended someone in the past, that once that person indicates that such conduct is no longer welcomed, then a pursuance of that conduct amounts to sexual harassment. In this regard, the learning in sexual harassment matters in labour law is very similar to the law on rape as it relates to the withdrawal of consent which may occur at any time.

The effect of Sexual Harassment

Sexual harassment does not only pollute the working environment, but has a devastating effect upon the mental health and personal safety of those affected by it. There are many instances where sexual harassment cases have led to rape, indecent assault and battery.

Furthermore, sexual harassment at the work place imposes a cost upon the employer, government and private sector alike, since it impedes efficiency and reduces profitability. The reasoning here is logical since some women resign their jobs, others request transfers or are demoted if they do not co-operate with sexual advances. The negative economic consequences are real, and contribute to absenteeism, high turnover among employees, low productivity rates, poor motivation and general job dissatisfaction. Therefore it is not surprising that a female worker will flagrantly refuse to do certain duties at work if it would mean that she will be exposed to working with the aggressor, especially if this is in a closed environment.

In many instances, women who do not complain about incidents of sexual harassment sometimes experience deep humiliation, self-blame, anger, and loss of self-confidence and a major drop in job performance as a result of overwhelming disorientation.

The “European Sexual Harassment Guide” outlines the following as things which women can do if they experience sexual harassment:

1. Make it clear to the harasser that you object to his behavior.

2. Keep a record of the incident including all material that may be used as evidence to support your case.

3. Report the harasser to someone in authority. This should be done even if you have made it clear to the harasser that his behavior is unacceptable.

4. Make a report to your representative Trade Union, Human Rights Department, Labour Department or Ministry of Legal Affairs as soon as possible. In the event that the conduct involves physical contact, or you may have been placed in great fear, then a report should be made to the Police.

It is the responsibility of the employer to assist in finding a solution by ensuring that the complaint is dealt with promptly and with due care. The proper investigative mechanism should be established, and the employer should ensure if it becomes necessary whether during or after the investigation, that the victim be separated from the harasser.

In these modern times our legislators must readily draft anti-discrimination legislation of which sexual harassment will find a place. Our trade unions must ensure that such matters are not swept under the carpet and that union members are properly educated on the issue. Furthermore, victims must readily lodge complaints of all acts of sexual harassment to the proper authorities. However, most importantly, all workers should simply act as professionals at the workplace or face the consequences.