Sexual harassment in the workplace

Sexual harassment is a serious offence and is also deemed a form of unfair discrimination.  The Employment Equity Act (EEA) stipulates that an employer violates the law if he/she fails to take the necessary steps in cases of alleged sexual harassment.  Section 60(3) of the EEA holds an employer liable for the unlawful, discriminatory conduct of its workers.

Defined as “unwanted behaviour of a sexual nature that violates the rights of an employee”, this behaviour includes any physical, verbal or non-verbal sexual conduct that makes the victim feel uncomfortable.

Sexual harassment violates the following rights of the victim:

  • The right to a work environment free from sexual harassment
  • The right to be treated with respect and dignity in the workplace
  • The right to equality and not to be discriminated against on the grounds of sex

Behaviour will only be considered sexual harassment if it has a sexually unwanted undertone.  The unwanted nature is distinguished from behaviour that is welcomed and reciprocated. 

Sexual attention becomes sexual harassment when:

  • The recipient has made it clear that the behaviour is not welcome
  • The behaviour persists
  • The offender should have known that the behaviour was considered unacceptable
  • Sexual harassment can occur between any sexes, and is independent of ethnic origin. The employer as well as the employee can be guilty. Even contractors and suppliers do not escape responsibility.

Employers need to put policies and procedures in place to curb this conduct. It must be clear to all employees in the workplace that sexual harassment will not be tolerated, what actions are considered sexual harassment, how it should be reported and how it will be dealt with. An employee who is suspected of being a victim must be reassured that all conversations will be confidential and handled with the necessary sensitivity. In addition to the fact that such behaviour can harm a victim, it can also damage the reputation of the business.


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LWO Regsadviseur - LWO Legal Advisor

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