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Sexual Harassment

LESEGO NSWAHU NCHUNGA
In this week’s piece, we will explore the definition of sexual harassment, and begin to contextually analyse the Botswana legal framework where sexual harassment is concerned.

Although the piece specifically observes the lacunas in the Botswana legal system in responding to sexual harassment, it remains a matter that is gendered and demanding urgent attention.

As the name suggests, sexual harassment involves unwanted behaviour that is of a sexual nature. It can occur or be perpetrated in different ways so it is important that as a workforce we have a working knowledge of what it is and how to identify it.

Sexual harassment includes unwelcome conduct, which may include a range of overt to subtle behaviour including, but not limited to: unwelcome or unwanted sexual advances; subtle or overt pressure for sexual favours; sexual jokes or innuendos; sexual propositions; verbal abuse of a sexual nature; graphic commentary about an individual’s body; discussions of sexual prowess or sexual deficiencies; leering, whistling, touching, pinching, fondling, assaulting or coercing sexual acts; suggestive, insulting or obscene comments or gestures; or display of sexually suggestive objects or pictures. This is not an exhaustive definition by any means, rather a basis for which to ascertain whether conduct can be classified as sexual harassment.

It has been found, that generally, acts of sexual harassment are perpetrated by senior management towards their subordinates. That is not to say the opposite does not occur- it does, just not as frequently, and not as disproportionately. It can also occur between colleagues who are the same level of employment.

This is most difficult to uproot because no clear motive is easy to establish when conducting an internal investigation.

Sexual harassment is predominantly perpetrated against women although men too have fallen prey to this cancer. Reports of incidents are few and far between because too many employees fear for victimisation or loss of jobs, in this economy.

This is a direct result of the absence of adequate protections being guaranteed either by law or internal policies of any given organisation. More can and should be done to specifically address prevention of or sanctions for sexual harassment.

In the ideal world, sexual harassment ought to be statutorily provided for, in a detailed a manner as possible with clear remedies for aggrieved parties set out. Unfortunately that is not the case in Botswana. The Public Service Act scantily provides for sexual harassment and its applicability is strictly for the public sector. The private sector workforce, on the other hand, has been left out

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in the cold with no provision made in the Employment Act which regulates employment relationships in the private sector.

Silence on the subject in the Employment Act is a grave omission on the part of the legislator as sexual harassment is not a new concept. It is one of the best kept secrets that have become accepted as a culture in most organisations. It is entrenched so deeply that even in the face of it, we either turn and look away or ride the wave in fear of losing employment.

It goes without saying that both public and private workforce should as a matter of course be protected against sexual harassment and have remedies within their reach in the event that it is perpetrated against them. Failure to create a work environment that is conducive for working should as a bare minimum constitute a breach of an employer’s duty to provide a safe working environment to it is employee.

But as it stands, it is not, which means private sector may or may not develop and apply anti-harassment policies, however dubbed.

Complex situations arise where the employer has no stipulated grievance mechanisms such as a sexual harassment policy that gives guidance on how to handle such a complaint and indicates its proper sanction.Employers are encouraged to develop clear procedures for dealing with sexual harassment, which may be incorporated into existing grievance or disciplinary procedures. Further to this, ensuring that employees are aware and fully conversant with the contents of any internal policy should be prioritised.

We have found that most internal policies are shared with new employees at the time of signing their contracts of employment. A time when one is on a utopia and focused primarily on securing the job.

Some most employees, though having signed the dotted line of accepting to be bound by the terms and conditions of any given policy, would not have actually taken time out to read and understand the document.

This further exacerbates the problem because lines are crossed unintentionally and regularly to the point where the offending behaviour is normalised.

This article was written in intensive collaboration with Oratile Gaopotlake. Gaopotlake is the founding partner at Warona Law Office in Gaborone. She is a policy expert on Sexual Harassment in the workplace, with an interest in the development of safe working environments.

 



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