Sexual harassment in the workplace: prevention, protection and responsibility

A workplace free from harassment and bullying is essential to employee wellbeing, productivity, and organisational success. While harassment can take many forms, sexual harassment remains a serious and pervasive challenge for employers in South Africa. It undermines dignity, creates hostile working environments and exposes employers to significant legal, reputational, and operational risks.

To strengthen protections, South Africa introduced the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 2022 (“the Code”) under the Employment Equity Act, 1998 (EEA). The Code provides guidance to employers, employees and other workplace stakeholders on preventing and addressing all forms of harassment, including sexual harassment.

Sexual harassment defined

Sexual harassment is broadly defined as unwelcome conduct of a sexual nature that violates an employee’s rights and creates a barrier to equity in the workplace. In assessing whether conduct constitutes sexual harassment, the following factors are considered:

• whether the harassment is on a prohibited ground;
• sex, gender and/or sexual orientation;
• whether the conduct was unwelcome;
• nature and extent of the conduct; and
• impact of the conduct on the employee.

Sexual harassment may be physical, verbal or non-verbal and can occur between colleagues, managers and subordinates, clients and employees, or any other persons connected to the workplace. Examples include unwelcome sexual advances, inappropriate touching, sexually suggestive comments or jokes, pursuing an employee (repeated unwanted requests for dates), displaying or distributing sexually explicit material and conduct that creates an intimidating, hostile or offensive environment. Importantly, the assessment focuses on whether the conduct was unwelcome and whether it infringed on the dignity of the affected person.

The primary purpose of the Code is to guide employers and employees on what constitutes harassment and to outline measures, policies and procedures to prevent and eliminate it. It promotes workplaces founded on dignity, equality, mutual respect and safety, while reinforcing employers’ obligations under labour legislation to protect employees from unfair discrimination and harassment.

Prevention

A key objective of the Code is prevention. Employers are required to adopt proactive measures to build workplace cultures where harassment is not tolerated. This includes developing clear policies, communicating behavioural standards, conducting awareness and training initiatives, and ensuring employees understand their rights and responsibilities.

Complaints

The Code also provides clarity on managing complaints. Employers should establish accessible and confidential reporting mechanisms, investigate complaints promptly, fairly and sensitively, and act within a reasonable timeframe. Failure to do so, or unreasonable delays in responding, may expose employers to vicarious liability under section 60 of the EEA. Employers must demonstrate that they distance themselves from the conduct. Victims should be protected from victimisation and retaliation, while alleged perpetrators must be afforded procedural fairness during investigations or disciplinary processes.

Protection

Another important objective is extending protection beyond traditional workplace boundaries. The Code recognises that harassment may occur during business travel, work functions, training events, virtual meetings, online communications and interactions with third parties. Employers should ensure their policies and preventative measures reflect the realities of modern working environments.

Compliance with the Code should not be seen only as a legal obligation. It is also an opportunity to foster trust, employee engagement and organisational resilience. Employees who feel respected and safe are more likely to contribute positively to workplace performance and culture.

Ultimately, preventing and eliminating sexual harassment requires commitment from management, effective policies, ongoing education and a clear message that inappropriate conduct will not be tolerated. By adopting the principles and objectives of the Code, employers can play a critical role in creating workplaces where dignity, respect and equality are a lived reality.

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