Unmasking sexual harassment in the workplace

Cape Town - Sexual harassment worldwide has become almost a pandemic.

Headlines across the world especially at the workplace, are littered with cases of this nature.

Today in South Africa we have almost 42% (expanded definition) of unemployment and this has caused an enormous amount desperation for people to hold on to their jobs. Even those applying for work are offered employment in exchange for sexual favours.

This unemployment rate leads to the fact that the majority of cases of sexual harassment are never reported or acted upon.

These cases only come to the fore when a person is dismissed or completely at their wits end. Sexual harassment is often acted out by the more powerful individual who has control over the other.

Invariably it is the men harassing the women and more often than not the perpetrator has some control over the victims job and position.

The victim sometimes plays along hoping that the grooming will not lead to more serious action, also, the victim often believes it might be his or her fault.

The grooming starts with a seemingly innocent comment either via social media or in person and the victim responds, understandably, positively. For instance, the comment: “you are very smartly dressed today”, will illicit a response, “thank you”, I appreciate that.

The next comment might go one step further by saying “your dress very favourably outlines your shape”. This comment is now sexual harassment. Sexual harassment need not be a series of events but might be one action. For instance, the gentle slap on the bottom is in fact sexual harassment.

The victim will not only blame herself but will also try and appease the assailant. By doing this it emboldens the assailant who wants to keep taking it further and further.

Our South African law is cogent, easily understood and more than sufficient to help the individuals prosecute the harasser. However, the defence raised by most perpetrators, in my experience, is two- fold. Firstly, they deny that it exists and there are no witnesses to prove otherwise.

Secondly, they allege that the victim was complicit, and the repartee or relationship was consensual. It’s easy to show consent by producing the initial posts on social media (whatsapp or any other platform). These initial posts will show that the victim has given positive responses in their pursuit of appeasement.

My advice to victims has been consistent:

• The victim should be, if at all possible, very negative and respond negatively to all comments and or approaches;

• The victim must try and keep as much evidence as possible including gifts, letters, whatsapp messages and even record conversations. It would be useful for the victim to go and visit the assailant, keep the door ajar and to have a colleague standing outside listening to the conversation. This requires an enormous amount of bravery and risk;

• Without evidence people will normally take the side of the more senior employee and the more powerful person. For instance, a powerful senior judge harassing a secretary will invariably be believed and will raise a defence of consent or deny it ever took place if no evidence exists;

• Education is the key to many of these cases. It is vital for every single employer to have a Code of Sexual Harassment outlining what must be done. There can be an anonymous hotline or even a special relationship between a trade union and the human resource management. Many employers have Codes of Good Practice specifically outlining what employees need to do and how the reporting can be done either anonymously or without repercussions.

I have been involved in cases of this nature for the past 40 years and it has become more rife. Many of my clients have introduced the banning of sexual relations between their staff and some have gone so far as to say that even if the relationship is consensual then one or both must leave. The fallout after the breakup of a consensual relationship has been damaging to both productivity and the relationship with other staff. The banning of relationships at the workplace has also been able to reduce the amount of sexual harassment as no one can raise a defence of consent.

Some employers have gone so far as to put cameras up everywhere and warning everyone that any untoward behaviour will be severely sanctioned at disciplinary hearings.

* Bagraim is a veteran labour lawyer and Democratic Alliance MP.

Cape Argus