Sexual harassment should not be tolerated in the workplace
Friday, 11 November, 2011Any form of harassment amounts to unfair discrimination. If you are unfairly discriminated against because of your sexual orientation, race, HIV status, our Constitution guarantees you protection under the Fundamental Bill of Rights provisions.
Harassment may manifest itself in many forms and for the purpose of this article; we will deal with sexual harassment in the workplace and the duties of the employer and an employee to prevent sexual harassment.
The legal definition of sexual harassment is: "Unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects an individual employment, unreasonably interferes with an individual work performance or creates an intimidating hostile or offensive work environment". Botswana has no specific law that deals with discrimination in the workplace save for the constitutional protection. In other jurisdictions, sexual harassment amongst others is legislated and protected under the specific laws of Employment Equity.
In understanding and contextualising sexual harassment, it is important that to appreciate this form of discrimination in its narrow and wider sense. When we speak of sexual harassment at the workplace from a narrow sense, we refer to harassment that is directly associated with employment issues. Employment issues differ from case-to-case and the following may be some of the immediate and common examples. A situation where your employer terminates your services because you have rejected sexual advances, or you are denied a promotion, or you are demoted or you are given a poor performance evaluation, or you are reassigned to a less desirable position. Should any of these examples relate to you in your working relationship, then you might be a victim of sexual harassment. Be cautioned that mere allegation that your employer has made sexual advances and thus denied you a promotion, will not be supported by the courts unless as a victim of sexual harassment, you prove on the balance of probabilities that the perpetrator had an intention of discriminating you and such discrimination was related employment issues.
When we speak of sexual harassment a in a wider sense, we refer to harassment that relates to issues of invasion of privacy, dignity, race and/or sexual orientation. This wider approach will extend to those people who are prospective job applicants and are either having sexual differences, or are living with HIV or are of different religious denomination or race and are discriminated against during the job application process. Any employment policy existing in your workplace and directly or indirectly discriminates prospective applicants could be challenged in the courts as such a discrimination policy offends the spirit of the Constitution. However, remember that it is sometimes fair to discriminate a person, when such discrimination is inherent in the job profile.
It must be noted that sexual harassment is not a gender issue affecting women only. The reality is that both men and women can be sexually harassed. The same argument goes to a person of same or opposite.
Because (victims of) sexual harassment are protected by law, the employer is under an obligation and strict responsibility to maintain a workplace that is free from any form of discrimination. If your employees are subject to sexual harassment, and nothing is done, your employees will have low morale and low productivity. You also risk exposing the organisation to unnecessary law suits.
The employer therefore has a duty to take reasonable care to prevent sexual harassment by:-
*Communicating clearly to employees that sexual harassment is not tolerated in the workplace.
*Developing a policy prohibiting sexual harassment.
*Establishing an effective complaint or grievance process that will inform employees on how to make a complaint.
*Enforcing the policy by taking immediate and appropriate action.
*Investigating the complaint by looking at the circumstances of the complaint e.g. nature of the sexual advances, context in which the alleged incidence occurred.
*Training managers and supervisors on how to deal with sexual harassment complaints.
*Reviewing your complaints procedure every year.
*Monitoring your workplace periodically.
The employee's duty, on the other hand if he/she believes that he/she is being sexually harassed is to:
*Keep record of what has happened to her/him.
*Inform the harasser that his/her conduct is unacceptable and that he/she must stop.
*Follow the workplace grievance procedure if it exists.
*Notify the supervisor if you are experiencing harassment.
*Report the sexual harassment.
*Seek legal advice to understand your choices, benefits as well as strength of your case.
If you believe the employer will not protect you or deal with your grievance appropriately, you may file a law suit in the courts. It is important that you Know Your Rights in your workplace!