As employees we spend a majority of our time at the workplace more than we do at any other place in our lives. Work is after all the primary source of our social security. Every employee should consequently be able to feel comfortable in their place of work. This notwithstanding, employees find themselves faced with different challenges including how to properly conduct themselves around their colleagues and how their colleagues conduct themselves towards them. I often ask myself whether employees are aware that certain conduct, behaviour and relations in the workplace have the potential to negatively impact their colleagues and that the law regulates such conduct and behaviour to protect those in the receiving end? This article is going to focus on these pertinent questions, in particular, we will discuss sexual harassment as a form of conduct in the workplace.
Sexual harassment can generally be defined as any unwanted conduct of a sexual nature, it must therefore be distinguished from conduct that is welcome, mutual and consensual. There are different forms of conduct that may be dismissed as normal conduct which are recognised as sexual harassment. They include physical conduct of a sexual nature ranging from touching, sexual assault and rape. Employees must also be aware that a strip search by or in the presence of a security officer of the opposite sex constitutes sexual harassment.
I remember growing up in my high school years, it was very popular for guys to whistle and make all sorts of sexual comments towards girls. This conduct was so popular that as a Mosotho girl you wouldn’t feel beautiful and appreciated if you were to go on an excursion and return without being whistled. This behaviour was in those years welcome and for some it validated their beauty. Now coming back to the employment context, any verbal innuendos, suggestions, hints, comments or sex related jokes and graphic comments about a person’s body constitute sexual harassment if unwelcome and unwanted by the person they are directed. The fact that the conduct happened once is not an excuse if the person it is directed to has indicated that the conduct is unwelcome.
Non- verbal conduct such as indecent exposures, unwelcome gestures and unwelcome display of sexually explicit material is another form of sexual harassment which most people turn to dismiss. The understanding being that as human beings we are entitled to display and indicate interest of intimate relations towards the person being pursued. While there is nothing wrong with that understanding, it is important to note that if unwanted or unwelcome, such conduct constitutes sexual harassment.
It has without a doubt become a norm in the workplace for some employers, senior managers and supervisors to influence the process of promotions, recruitment, training and development, salary increments and other benefits of the employee or prospective employee(s) in exchange for sexual favours. This is a form of sexual harassment known as quid pro quo harassment. There is a very thin line between this form of sexual harassment and sexual favouritism which occurs where a person who is in the position of authority rewards only those who positively respond to his/her sexual advances to the prejudice of the deserving employees who do not submit to the sexual advances.
It is generally believed that sexual harassment is encountered by female employees only, it has however been discovered that male employees are sexually harassed even though it may be at the lesser degree. This believe is perhaps anchored by the Sesotho saying that “monna ke nku ha lle” which saying discourages our fellow brothers from reporting such horrible acts of harassment towards them for fear of having their manhood undermined. I suppose this is the reason we have such a damaged society, “monna esale ele nku a sa lebelloa ha lla leha a utloisoa bohloko”. Unfortunately the pain culminates into all sorts of preserved emotions which when given opportunity to explode, the explosion is nothing but an epic display of hurt, harassment, deceit and other negative emotions towards those closer to the explosion.
Our law as provided for by the Labour Code, section 200 constitutes quid pro quo harassment as unfair labour practice while the Codes of Good Practice, section 55 have extended the forms of harassment in order to encourage employers to eliminate all forms of sexual harassment in the workplace. The Codes provide appropriate guidelines and procedures to employers to deal with the pandemic of sexual harassment and to prevent its recurrence.
Experiencing sexual harassment causes survivors to face emotional, physical, or mental health challenges which include anger, fear, humiliation, shame etc. These challenges are so gross that they may result in resignation for some employees. It is therefore important for employers to develop and implement policies and procedures geared towards creating workplaces that are free from sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy and right to equality in the workplace.
For more information contact Tharollo Labour Law and Industrial Relations Consultancy
Phone: +266 52512345
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