Is the reach of the definition of workplace harassment adequately inclusive?

Is the reach of the definition of workplace harassment adequately inclusive?

The prevalence of gender-based violence and workplace violence and harassment has led to some wondering whether there is adequate protection for employees in this regard.

The Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace has an expansive definition of workplace violence, harassment and bullying and it also places the necessary obligations on employers to protect employees.

The code defines sexual harassment as any conduct that the person knows (or should know) is not welcome, offends the complainant or makes the complainant feel uncomfortable, and interferes with work.

This means that the:

• conduct is unwanted/unwelcome,
• conduct is persistent, although a single incident of harassment can constitute sexual harassment, and/or
• recipient has made it clear that the behaviour is considered offensive, and/or
• perpetrator should have known that the behaviour is regarded as unacceptable, and
• conduct violates the rights of the employee.

Racial violence and harassment are considered forms of harassment as the conduct demeans, humiliates or creates a hostile or intimidating work environment for a complainant, e.g. abusive language and racist jokes/name-calling, negative stereotyping, offensive behaviour creating hostility, exclusion from workplace interaction and/or marginalisation and threatening behaviour.

A hostile work environment is also considered a specific form of harassment. This is where the behaviour by a manager, persons in authority or co-worker whose actions, communication or behaviour make the work environment uncomfortable, or doing one’s job impossible.

Acts of harassment may include, but are not limited to:

1. Physical acts: Assault, inappropriate touching in the workplace such as patting, pinching, stroking or brushing up against the body, unwanted/unwelcome hugging etc.

2. Verbal behaviour of a sexual nature: persistent and unwelcome flirting or compliments of a personal nature, sex-related jokes, derogatory or patronising name-calling; request for sexual favours, verbal threats or abuse, suggestive or insulting sounds such as whistling or wolf calls; and other verbal conduct of a sexual nature which is made an explicit or implicit term or condition of one’s employment or promotion.

3. Gestures or other non-verbal behaviour: Sexual looks like leering and ogling with suggestive overtones; lewd gestures such as a hand or sign language to denote sexual activity.
   

4. Visual sexual harassment: e.g., a public display of pornographic or other offensive, derogatory and/or explicit pictures, photographs, cartoons, drawings and other material or indecent exposure of private parts.

Although legislation focuses on the relationship between employer and employee, employees are not the only possible victims of sexual harassment in the working environment. The victim and perpetrator of the sexual harassment do not have to be co-workers, but include persons such as:

• owners
• employers
• managers
• supervisors
• employees
• job applicants
• clients
• suppliers
• contractors
• others having dealings with a business

It is reassuring that in the handling of workplace violence and harassment:

• The sexual harassment need not take place within working hours or on the employer’s premises or in order for the employer to take disciplinary action. Work related social events resulting in harassment are included in the scope.

• Sexual harassment is not limited to any hierarchical system, therefore the perpetrator of the sexual harassment may be a co-worker, a supplier and even by a subordinate on a superior level and thus should not hold a more senior position to the victim.

• Workplace bullying is included in the scope of workplace violence and harassment, thus it is defined as: “unwanted persistent conduct (or a single incident) which is serious and demeans, humiliates, or creates a hostile or intimidating work environment.” Some examples of workplace bullying include insulting, harassing, offending, professionally or socially excluding someone or negatively affecting their work tasks.

• The conduct needs to be unwelcome in order for it to amount to sexual harassment and this needs to be indicated. Therefore, this may be done verbally (by telling the perpetrator that the conduct is unwelcome) or through non-verbal means such as walking away or not responding to the perpetrator. The victim may also seek the assistance and intervention of another person such as a co-worker, superior, counsellor, HR official, a family member or friend.

• Having welcomed the conduct or having participated in it in the past, does not imply that the conduct complained of is welcomed in the future. Therefore, an employee may lodge a harassment complaint against a perpetrator when the attention becomes unwelcome, even if the employee was previously in a relationship with the perpetrator/had participated or welcomed the behaviour previously.

• Harassment can also be perpetrated virtually through: inappropriate dress code during online meetings, online stalking, forcing employees to attend video calls well after working hours, making personal remarks on a colleague’s social media, sending inappropriate or sexual memes and other multimedia material online and/or sending inappropriate emojis or messages online.

Legislation not only defines harassment, but it also requires employers to take active steps to mitigate sexual harassment in the workplace through implementation of a sexual harassment policy as well as other measures to mitigate sexual harassment in the workplace, such as:

• training employees on what constitutes sexual harassment and what they should do if it occurs.
• issuing regular communication to employees regarding the prohibition on sexual harassment, the nature and reporting of sexual harassment.
• making it clear to all contractors, suppliers or any external personnel with whom the business interacts that sexual harassment will not be tolerated at its workplace.

In light of the above, it is clear that the reach of the definition of workplace violence and harassment is widely inclusive and that employers are obligated to put in place the necessary measures to safeguard employees and address all aspects of workplace violence and harassment.

It is equally important for employees to be aware of the workplace policies and measures at their disposal and when in doubt, ask and obtain the necessary guidance. Remember, MISA is only a phone call away!