Remedies For Sexual Harassment
Lesego Nswahu Nchunga | Monday February 17, 2020 14:26
What next? This piece will explore the types of relief an agrieved employee can seek, when making a claim that they have been sexually harassed. Undoubtedly, harassment, like other forms of harm, causes injury to the individual subjected to or exposed to the harm.
A remedy is essentially the enforcement of a right that has been violated. It imposes a penalty on the one responsible, whether directly or indirectly for causing the harm.
So, what next for the harassed, any witness, the harasser and the Employer?
There is no single one size fits all answer to the above but in the absence of any law which categorically deals with the issue of sexual harassment the starting point is referring to an internal policy of the given company.
In there a deliberately wide definition should be included and clear steps on what will take place once an incident has been reported. It cannot be emphasised enough that reporting should always be an option. Too many cases go unreported which skew statistics and undo any efforts to address the issue.
In the ideal setting, sexual harassment should be reported immediately to the Human Resources department, as custodian of internal policies. How should the report be made? Employees ought to be given alternate options of ways to report. Protection from victimisation should be prioritised.
For example, an anonymous hotline or email address can be set up. What if the harasser is in HR? The Complainant should have the option of reporting to a senior manager of the company. What if the harasser is the most senior manager of the company? The employer should have an ad hoc arrangement with an independent third party (possibly an attorney) who can handle reports that are at the highest level of the internal hierarchy of the company.
The internal policy of the company must clearly state the consequences that a harasser will face such that any potential harassers are also put on notice of the repercussions that will follow if sexual harassment is found to have occurred at their instance.
Are there levels of sexual harassment? The simple answer is yes. It is however a very delicate balance to try and classify the different acts and pair them with proportionate punishment, as it were. Further to this, people are affected differently by sexual harassment and have different tolerance levels to it. Somewhere in between the two, the Employer must create a policy which will give adequate protection to employees.
Employees need to be protected from themselves (condoning sexual harassment) and from others (harassers). Once an incident has been reported, an Employer must take action immediately. The reason of hastening the investigation process is twofold: (a) employees need to see that action is being taken and believe in the process (b) to have the best chance at gathering evidence whilst witness accounts are still fresh in their memory. The victim must be assured protection against victimisation or at least have empowerment in knowing what to do in the event that it does happen.
The investigator’s mandate will be largely dictated by who the complainant is. Where the complainant is the same person who is the victim then the fact finding mission usually has clear leads of who was there, who could have heard, who else has been harassed and such.
Where the complainant is only a witness then the investigator ought to cast their net wide in piecing together a story which is second hand information. The importance of creating the possibility of witnesses reporting harassment is that these types of complainants become a voice for the voiceless.
It has been found that sometimes the shame and embarrassment that victims carry with them hinder them from taking the bold step of reporting. But once someone else does, there are ways to create an environment in which they can open up and discuss the harassment which they endured.
The identities of the complainant and the harasser must be protected at all times, from the beginning of the process to the end.
The two will usually continue to work together while the investigation is ongoing therefore it is important not to make a bad situation worse.
Moreover, sometimes at the end of the investigation it is found that harassment has not occurred. In which instance it is only fair that all parties walk away with their reputation and integrity intact.
Once the investigation process has been completed, depending on the findings, appropriate action must be taken. Beyond this, the complainant must be informed of the action that was taken, the steps that were followed and the decision that has been reached.
This article was written in collaboration with Oratile Gaopotlake. She has considerable experience in developing anti-harassment policies. Gaopotlake also has been engaged to review existing internal policies according to client’s brief and international best practice. In recent times she has conducted in house corporate investigations on sexual harassment reported incidents and presented recommendations accordingly. She has a great interest in the work and endeavours to make work spaces safe and comfortable for all.