'He fondled my breasts!' (Part 1)

Nkiwane Ndaba | Friday October 25, 2013 16:55

 

There is a plethora of laws governing employment legislation and sometimes it seems that, no matter what action is taken, there is always a law suit pending in the courts against employers.  Organisational culture is key to understanding how and why sexual harassment occurs in some organisations and not in others.  If employees feel that it is not being tackled then they may believe that such behaviour is tolerated and even condoned, which in turn can lead to tolerance of sexual harassment within the organisation.

Save for a Code of Sexual Harassment, Botswana is yet to come up with a law that deals with Sexual Harassment in the workplace.  The absence of such law, however, does not mean sexual harassment does not exist in Botswana, nor does it mean that no action can be taken against the perpetrators.  It has been observed by some commentators that academic credentials no longer count in the job market but sexual favours have become 'the passport to employment' and the most affected are the women.

It has been argued that whenever women submit such job applications, they are told by their would-be-bosses that the jobs are available only if the woman was prepared to 'offer something in return'.  Some, due to economic pressures, have fallen in as a means to get the next meal on the table yet some have not.  Some have left their jobs after their bosses bluntly demanded 'sex' from them. Their refusal to become 'concubines' so as to secure their jobs and 'pay hikes' results in them having to 'pack and go'.  In the same vein, it has also been argued that some male employees have been lured to bed by their women bosses for sexual favours in exchange for jobs and job security.  In essence both male and female are affected though at varying proportions.

The absence of a specific law that deals with sexual harassment does not mean that the victims should therefore sit back and not take issue with such conduct and seek redress through the courts of law? Of course not! It does not even mean that because there is no law dealing with sexual harassment then the same is legal, is not known or can be condoned. The Industrial Court and the High Court have got jurisdiction to hear and determine such matters including sexual harassment.

Sexual harassment in the workplace has become an occupational hazard. It happens everywhere. It happens in organisations ranging from larger cooperations to one-person businesses. It happens in senior and junior levels. It happens within the force - police, prisons and yes the army.  It happens in Government offices.  Accordingly it has to be managed, dealt with directly and approached with a 'zero tolerance attitude'.

Sexual harassment is considered to be civil rather than a criminal wrong. That simply means that the victims of sexual harassment are entitled to bring lawsuits and receive money for damages and compensation for the harm they would have suffered. The perpetrators of sexual harassment, however, do not go to jail because they engaged in harassment. It must be noted however that the behaviour of sexual harassment may also be a crime for which the perpetrator can be punished; for example, if a supervisor rapes a subordinate at the workplace, this constitutes the civil wrong of sexual harassment and a crime of rape.

In South Africa, the South African Code of Good Practice on handling sexual harassment provides that the victim of sexual harassment has the right to press separate charges against the alleged perpetrator. In the case of Botswana, where an employee resigns from their employ consequent to sexual harassment, they can press a charge of constructive dismissal at the Industrial Court and seek for compensation or sue for damages at the High Court under the laws of tort.

Sexual Harassment has been widely defined by a number of authorities.  Some have tried to be specific and others have given a broader definition that includes a number of options;

l Sexual harassment is unwanted conduct or behaviour. It must therefore be distinguished from that conduct which is accepted, acceptable, mutual or even encouraged;

l_The use of undesired sexual approaches, conduct, behaviour or suggestive dialogue with sexual connotations;

l_Unwanted physical conduct ranging from touching to sexual assault and rape, as well as requiring a strip search by or in the presence of a person of the opposite sex;

l_Unwelcome smutty jokes or narrations, or insults of a sexual nature, or unwelcome graphic comments about the person's body made to them or in their presence, or any unwelcome or in appropriate enquiries about the person's sex life;

l_Unwelcome gestures and the display of sexually explicit pictures or objects which go beyond the bounds of reasonable decency and/or those that are displayed in order to cause embarrassment or demean those of the opposite or same sex.

It has been argued by some scholars that women and men differently perceive behaviour that can be characterised as sexual harassment.  Many courts, especially in the United States, in determining whether a particular conduct is sufficiently severe or persistent to alter employment conditions, have expressly applied an objective test to hostile work environment claims. In deciding which test to adopt, the court may wish to consider data suggesting that men and women tend to evaluate sexual behaviour in the workplace dissimilarly.

One study suggests that women may view sexual overtures as threatening their positions at work.  It has also been observed that sexual liaisons with co-workers raise a man's status in the work organisation but lowers that of the woman.  Related studies further suggest that men are significantly more likely to attribute the causes of harassing behaviour to characteristics of the victim, while women are more likely to attribute the causes to the characteristics of the perpetrators.

The practical reality is that sexual harassment is more frequently being committed by more-senior males on more-junior females.  When the chicken comes home to roost, the frivolous excuses are pathetic, for example 'I thought she enjoyed it... the attention' yet they do not have any objective evidence to support this perception.  Sexual harassment in the workplace is fairly common and places the recipient under severe emotional pressure where, in many cases, they merely opt out and seek for alternative employment.  Too often, employers, notwithstanding the potential financial awards that could be made against them, do not see the fire although there is a lot of smoke!

Prevention is better than resolution.  Employers must be proactive and create a sexual harassment-free workplace.  Apart from being required to take immediate action, employers are required to deal with these matters in an effective, sensitive and efficient manner. Failure to do so may result in the company being liable to pay substantial damage awards. The South African courts have awarded victims up to 24 months compensation for such sex discrimination.

Employers therefore must ensure that top management in the company take a strict and open policy against any form of discrimination perpetrated by any employee or person who has dealings with the company.  It is the obligation of the company to ensure that sexual harassment, as a form of discrimination along with that of racial and religious is not tolerated.  The intention should not be to create a sombre, ultra-orthodox and conservative atmosphere where employees are discouraged and prevented or are fearful of social contact with each other. Office romances and relationships do happen and these should not be frowned upon as long as the conduct of the parties does not cause offence.

It must be accepted that at office parties and cocktail functions employees do tend to become relaxed and may often 'let their hair down'.

 There is, however, a threshold beyond which harmless joviality, teasing and banter may exceed the limits of reasonableness.  In an increasingly litigious work environment, some employers may be tempted to cancel their celebratory event because they believe it may not be worth the effort. It still is, but a few simple precautions will ensure that you can approach the New Year with a sense of hope, not trepidation. 

askndaba@gmail.com