The Ultimate Supervisor Module E

Soft Skills Module E Handling Diversity & Dysfunctional Work Environments

Written Compiled & Presented by Colin Dovey Copyright Chiron Concepts Consulting Š 2012

Sexual Harassment Manual

A Comprehensive Manual For the Prevention & Handling of Sexual Harassment in the South African Workplace Compiled and written By Colin Dovey

lifecoaching@polka.co.za http://www.thinkability.co.za 083-487-2423

Sexual Harassment Manual For Small Businesses A Comprehensive Manual For the Prevention & Handling of Sexual Harassment in the South African Workplace

Compiled and written By Colin Dovey FOREWORD In recent times, many South African companies have come on board, and adopted a policy aimed at preventing and then handling Sexual Harassment, aimed at a commitment to maintaining mutual respect, safety, high morale and tolerance in the workplace.

TABLE OF CONTENTS Sexual Harassment Policy

PAGE 5

1. Introduction 2. Preamble 3. Definition 4. Behaviour constituting Sexual Harassment 5. Procedure 6. Confidentiality 7. Employee Assistance Program Defining Sexual Harassment

11

Types of Harassment

16

The Scary face of Sexual Harassment in the Workplace

18

Lack of Company Policy

25

Legal Costs

25

Personal Costs

27

Practical Steps

28

Notice of Good Practice

30

Sexual Harassment Complaint Forms

36

Declaration - Commitment to a Code of Practice

40

Index

41

of Sexual Harassment in _________________________________ (Company Name) The above named company, together with its executive, management and all employers is totally committed to a policy which will not tolerate any conduct that can reasonably be construed or viewed as sexual harassment.

The aforementioned company will therefore ensure that all complaints of this nature are taken seriously and handled promptly and impartially, and that action is taken to ensure that any harassment stops forthwith, and that persons making any complaint of this nature, and those acting as witnesses suffer any form of retaliation whatsoever.

Signed:___________________________ Position:__________________________ Date:_____________________________

Persons covered by the enactment of the policy signed above are equally, males and females. It therefore covers ALL members of staff, wherever employed, consultants, employees and contractors, job applicants and visitors.

NB: Social functions and events that are part of official business are also included. Members of staff traveling outside of the working place on company business are also, by the nature of their work, also included.

Sexual Harassment Policy 1. Introduction ABC Company believes that:(a) All employees and job applicants have the right to be treated with dignity. (b) Employees are required to respect one another's integrity, dignity, privacy and their right to equity in the workplace. (c) Sexual harassment in the workplace will not be permitted or condoned and the purpose of this policy is to adopt a zero tolerance approach towards sexual harassment in the workplace. (d) Persons who have been subjected to sexual harassment in the workplace have a right to lodge a grievance, and to expect that the Company will take appropriate action.

2. Preamble The purpose of the policy is to be consistent with the constitution of the Republic of South Africa, which entrenches fundamental human rights.

Sexual harassment is a violation of the fundamental human rights of men and women and is a violation of the right to equality, human dignity, privacy, security of person and fair labour practices. Sexual harassment undermines the basic integrity of the employment relationship and is a direct violation of ABC Company values and Code of Conduct.

The organisation commits itself to the timeous handling of cases of alleged sexual harassment and to ensure that fair procedures and appropriate action is taken to minimise and deal with matters of sexual harassment as soon as instances of alleged sexual harassment are brought to its attention.

The organisation views sexual harassment in any form extremely seriously and disciplinary action, including summary dismissal, may result.

In turn however, false and malicious claims of sexual harassment that cannot be substantiated will also be viewed in a serious light, and disciplinary action including dismissal may result.

Sexual harassment may be committed against both male or female persons by persons of the same or opposite sex without regard to the employee's or the perpetrator's sexual orientation.

3. Definition Sexual attention becomes sexual harassment if:(a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

(b) (c)

The recipient has made it clear that the behaviour is considered offensive; and/or The perpetrator should have known that the behaviour is regarded as unacceptable.

4. Behaviour constituting sexual harassment Sexual harassment includes, but is not limited to the following types of behaviour:4.1 Verbal behaviour of a sexual nature, such as (a) Unwelcome innuendoes, suggestions and hints. (b) Unwelcome sexual advances. (c) Unwelcome comments with sexual overtones. (d) Unwelcome sex related jokes or insults. (e) Unwelcome graphic comments about a person’s body made in their presence or directed toward them. (f) Unwelcome and in-appropriate enquiries about a person’s sex life. (g) Unwelcome whistling directed at a person or group of persons. (h) Unwelcome jokes that cause awkwardness or embarrassment. (i) Comments about a person’s sexual habits. (j) Verbal threats or abuse. (k) Unwelcome telephone calls with sexual overtones.

4.2 Gestures and other non-verbal behaviour (a) Unwelcome gestures. (b) Indecent exposure. (c) The unwelcome display of sexually explicit/undesirable pictures and objects . (d) Persistent and unwelcome flirting.

4.3 Visual sexual harassment (a) A public display of pornographic or other offensive, derogatory and/or sexually explicit pictures, photographs, cartoons, drawings, symbols and other material. (b) Showing of pornographic or sexually explicit movies or slides. (c) Indecent exposure of private parts in view of others. (d) Displaying/sourcing offensive material/jokes on PC’s and/or e-mailing such material to other employees.

4.4 Physical behaviour (a) All unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex. (b) Attempted or actual kissing or fondling.

4.5 Psychological sexual behaviour (a) Repeated unwanted social invitations for dinner, drinks or movies. (b) Sexual favours. (a) Requiring/requesting a subordinate to wear sexy, revealing, or suggestive clothes.

4.6 Quid pro quo harassment When an employer, supervisor, member of management or co-employee undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.

4.7 Sexual favouritism Exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.

4.8 The 路1 路2 路3 路4

Behaviour which does not constitute sexual harassment following would not normally constitute sexual harassment:Occasional compliments.

Flirtatious banter when it is mutually acceptable.

Forms of greetings that are deemed acceptable according to Company culture and behaviour.

Occasional jokes or other behaviours whereby the intent is not meant to be offensive, except where the perpetrator should have known that the behaviour is regarded as unacceptable.

5. Procedure Sexual harassment allegations need not follow the normal Grievance Procedure and will remain as confidential as possible. Any employee who believes that he or she has been the subject of sexual harassment should report the alleged charge immediately in accordance with the following procedure. All information disclosed pursuant to this procedure will be held in strictest confidence, and will only be disclosed on a need-to-know basis in order to investigate and resolve the matter.

Because the immediate supervisor or line manager may be alleged to be involved, the complainant may contact anyone from Human Resources (on either the Waltloo or the Head Office site); their Shop Stewards or the Employee Assistance Programme Coordinator to investigate an allegation. This investigation must be

done in consultation with Human Resources or by a management assigned investigator.

The investigator would assure the complainant that the allegation details and the complainant’s identity will remain as confidential as possible.

The investigator and the complainant should try to agree whether the complainant wishes the matter to be resolved informally or prefers formal disciplinary action to be taken. Pressure should not however be put on the complainant to either drop or proceed with the complaint/grievance.

5.1 The Informal Procedure If the complainant prefers informal action, the assigned investigator will call the accused to a private meeting, advise them of the details of the complaint lodged.

The investigator will assure the accused that their own identity will remain as confidential as possible until the matter is resolved. The investigator must give the accused an opportunity to state their case; explain the outcome that the complainant requests (an informal settlement) and advise the accused of the possible consequences if proved guilty of sexual harassment in a formal disciplinary hearing.

The investigator shall again meet with the complainant, advise him/her of the accused’s response and, if the complainant is satisfied, invite both parties to meet to consider resolving and settling the matter without the need for formal discipline action.

The investigator will assess what support and assistance the complainant may require after settlement.

The role of the investigator is that of a mediator. On being appraised of the allegations, the investigator may of his/her own accord initiate the formal procedures set out in 5.2 below.

5.2 The Formal Procedure If the matter is not settled, or if the complainant or accused wants formal disciplinary action the investigator will investigate the allegation sensitively, interview witnesses, if any, and get written statements, if possible. If the allegations are substantial and serious, and there are reasonable prospects of proving the allegations against the accused on a balance of probability , the normal Disciplinary Procedures in respect of a formal disciplinary hearing, shall then be followed.

The above procedure may differ in two important respects:-

·1

·2

if the complainant wishes, the formal discipline hearing will take place in camera, i.e. in private, only the persons directly involved, should attend; and the names of the parties shall remain as confidential as possible.

ABC Company’s usual disciplinary measures apply, as well as the normal rules regarding appeals.

It is a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment, or to pressurise a complainant to drop a complaint of sexual harassment.

In turn it is a disciplinary offence to lay unfounded or unjustified complaints against a fellow employee with the intent to cause malicious harm to them or their reputation. The legal rights of the victim are reserved and are in no way limited.

6. Confidentiality (a)

(b)

(a)

Employers and employees must ensure that grievances about sexual harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept as confidential as possible.

In cases of sexual harassment, management, employees and the parties concerned must endeavour to ensure confidentiality as far as possible in the disciplinary inquiry. Only appropriate members of management as well as the aggrieved person, representative, alleged perpetrator, witnesses and interpreter if required, must be present in the disciplinary inquiry.

The Company is required to disclose to either party or to their representatives, such information as may be reasonably necessary to enable the parties to prepare for any internal or external civil or criminal proceedings.

7. Employee Assistance Programme A complainant or an alleged perpetrator of sexual harassment, who has been found to be innocent or unjustly accused, may apply for assistance in terms of the ABC Company Employee Assistance Programme for remedial assistance, including the provision of special leave or trauma counselling where such proceedings have impacted on the employee's work performance or psychological well-being.

Defining Sexual Harassment It is identified as “unwanted conduct of a sexual nature.” Such conduct becomes harassment when: · Sexually charged behaviour persists on an ongoing basis · The victim of such acts makes it clear that such behavior is inappropriate and the behavior persists · The perpetrator is aware that his/her behavior is unacceptable, but continues to behave in such a manner.

What about that conduct not directed specifically at one person?

If the conduct causes harm or suffering to another person in the workplace; interferes with work or productivity; or creates an intimidating, hostile, or offensive working environment, it must be covered by the company policy on Sexual Harassment, even if it is not directed specifically at a particular person.

Examples of this broader type of sexual harassment can include risqué pin-ups posted on bulletin boards, office or factory walls, or engaging in lewd conversation within the hearing of someone who is thereby offended. Conduct such as the foregoing is unprofessional, lowers the standards and tone, thereby creating a potentially hostile and uncomfortable working environment for some people.

The potentially thorny matter of cultural differences.

Unwanted, offensive sexual conduct is not acceptable in any culture. Naturally, people’s attitudes to personal space and privacy, touching, and appropriate topics of conversation vary widely, depending on their cultural backgrounds, gender, race, religion, belief system, education and upbringing.

In a multi-cultural country such as South Africa, the values of no one particular can dominate. That is why a properly drawn up policy allows for each individual to decide for themselves what THEY find offensive and then to let the others know if they are offended.

There should be an onus on staff at all times to treat others with tact and respect.

The best policy when one is not sure about the effect of one’s words or actions, the byword should be to be discreet and careful, erring toward caution. If a person is told that their conduct is offensive, it is best to apologise as soon as possible for any offence taken, then say that you did not realize you were offending the other person and not do it again. For many people, sexual matters are Private & Confidential, and this MUST be respected.

Can harmless flirtation be categorized as sexual harassment?

Flirtation, per se, that is not unwanted is not sexual harassment. However, if it is too blatant, it may then cross over into being considered inappropriate behavior for the workplace, and may cause embarrassment for others.

It should be pointed out, however, that sexual attraction is a natural part of being human, and indeed many people meet their future partners at work.

Obviously, there is nothing wrong with this, providing certain standards are maintained.

What if someone dresses in a provocative manner Whilst provocative clothing may indeed be inappropriate for the workplace, and some venues more than others, this does not mean that the person concerned is inviting harassment. Each person is responsible for their own behavior in a company workplace, and must of course, treat others with respect, regardless of their taste or style of clothing.

What if the harassment is outside of the company workplace?

If the harassment occurs at a work-related task or event (such as a company social function or as a travelling representative on company business) it must still be covered by the policy.

The role of Human Resources (HR) and counselors Who can assist you if you are experiencing harassment?

For companies who adopt a definite sexual harassment policy, this should, if possible, cater for a category of staff, called helpers, who are trained to provide assistance to staff on a confidential basis. The names of these people should be made freely available. This sort of person could actually be included to be trained under the SETA structure as a mentor where practical and possible.

The names of these people should be made freely available by publicizing them – their names and contact details – on company notice boards, staff bulletins & newsletters as may be applicable in the particular working environment. The “helper” should be appointed or chosen for their established ability to be able to listen to the particular problem, and are able to talk through the complainants problem with them, then provide direct assistance by way of mediation, or speaking with the alleged harasser, or their supervisor.

It should be the helper’s aim to assist in resolving the issue at hand in an informal way that will suit ALL the people involved. Helpers should not be involved in any formal complaint – even if informal options did not resolve the problem.

The helpers must not be permitted to tell any other party, except with the permission of the complainant. Helpers are not allowed to make any decisions for the complainant, but should help them to understand their options, with the final decision being left to the complainant.

Who can help you if you are accused of harassment?

Regardless of what has happened, it can be very upsetting if any person is accused of harassment, guilty or not. In cases such as these, the person concerned can approach a helper for advice, but it must not be the same person as that one already approached by the complainant.

Will the helpers provide counseling?

The helpers must not be there for the purpose of in-depth counseling for staff who have been seriously affected by harassment. This task should be allocated and directed to qualified professionals as may be available to those working for a particular company.

The Role of Senior Staff What is the responsibility of senior staff?

Department Heads, Directors, Managers & Supervisors have a particular responsibility for the prevention of sexual harassment In this connection, this category of staff should: · Act as role models by setting very high standards of behavior for themselves, and to make sure that all staff, including new staff, understand the Sexual Harassment policy. · Encourage a positive working environment of DIGNITY & RESPECT in which Sexual Harassment is not tolerated, and then to ensure that material with a sexual connotation is not displayed in the workplace. · Be supportive of, and promote the role of helpers & staff counselors. · Encourage staff to say NO to harassment, and to make sure that staff KNOW that there will be no victimization if complaints are lodged. · Ensure unacceptable behavior that comes to their attention is dealt with promptly by discussing it directly with the staff members concerned to ensure that they modify their behavior.

Dealing with informal complaints In dealing with informal complaints: · Senior staff and managers at all levels must be supportive of the aggrieved person, without prejudging the issue · Advise the aggrieved person of the options available to them · Refer the aggrieved person to a helper and/or counselor, where appropriate · Depending on the wishes of the aggrieved person, it should be attempted to resolve the matter by discussing it with the alleged harasser, or mediating between the aggrieved person and the alleged harasser. · Follow up on incidents to ensure may specific harassment has stopped and that there is no retaliation · If a FORMAL complaint has been made, senior staff should consider redeploying either party, pending the resolution of the formal complaint.

Complaining about harassment What action should the complainant take if harassed?

It should be made easy to access any number of informal options, depending on what has occurred. These may include: 1. Speaking directly to the alleged harasser 2. Writing a letter to the alleged harasser 3. Ask the supervisor (or a helper) to speak to the alleged harasser on their behalf 4. Ask a helper to accompany you while you speak to the alleged harasser 5. Ask a helper to mediate between the complainant & the alleged harasser Discussion of the above options 1. Speaking directly to the alleged harasser.

Sometimes, the harassment may have been unintentional, due to a misunderstanding or just plain ignorance. It may be possible to clear the matter up and stop any further harassment by speaking directly, or writing to the person concerned.

It is usually helpful to describe the conduct that is upsetting the complainant, and express his/her feelings & request that it stop. For example if someone is asking about a person’s private life, it may be correct by a party to say: “When

personal matters are discussed in front of me, I feel uncomfortable and would like to keep our relationship at a higher level.”

2. Asking a helper or supervisor to speak to the alleged harasser on behalf of the complainant Sometimes the complainant may find it difficult to speak directly to the alleged harasser because of his/her position, or because they are too embarrassed or even because they are intimidated to discuss what has happened. In this case, the complainant can ask a helper or their supervisor to speak discreetly with the alleged harasser on their behalf. The helper should be trained to let the complainant know what was said and will try to resolve the matter privately and informally, according to the complainant’s wishes.

3. Asking the Helper to accompany the complainant If the complainant feels too intimidated or embarrassed to speak to the alleged harasser on their own, they can ask the helper to accompany them to provide support. In the party of 3 (helper, complainant and alleged harasser) the complainant may be able to resolve the problem without the need to proceed further.

4. Asking the Helper to mediate It can be helpful to have an independent person such as a helper to mediate between the complainant and the alleged harasser. The helper should make sure both people have the opportunity to speak, and will help the complainant to resolve the problem between the parties. Mediation can be very helpful in giving the complainant the chance to tell the other person how their behavior affects them, without having to lay a formal complaint.

If none of the options succeeds in resolving the situation, the complainant can ask the helper to speak to the supervisor or the alleged harasser to seek his or her assistance.

When may it be advisable to lodge a formal complaint?

A formal complaint can be lodged when: · The previously discussed options are not appropriate because of the nature of the harassment or other relevant circumstances · The matter has not been resolved by using the informal options

What if false complaints are made?

False or malicious complaints can seriously damage a person’s reputation, career and relationships. If anyone makes a false or malicious complaint of sexual harassment, that party may face an investigation & disciplinary action, depending on the situation.

Useful Background research and information on sexual harassment.

Internationally, sexual harassment is defined as intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. In some contexts, it may actually be illegal. For many businesses, preventing sexual harassment and defending employees from sexual harassment charges have become key goals.

Harassment scenarios Sexual harassment can occur in a variety of circumstances. Often, but not always, the harasser is in a position of authority over the victim (due to differences in age, social, political, educational or employment relationships) Forms of harassment relationships can include: · The harasser can be anyone, such as a manager, client, coworker, student, friend, teacher, or even a stranger · The victim does not have to be the person directly harassed, but can be anyone who finds the behavior offensive and is affected by it. · While adverse effects on the victim are common, this does not HAVE to be the case for the behavior to be unlawful · The victim or the harasser can be any gender · The harasser does not have to be that of the opposite sex. · The harasser may be completely unaware that his/her behavior s offensive or constitutes sexual harassment · Misunderstanding between male/female communication Types of Harassment There are a multiplicity of harassing types of behavior, and the scenario can take place between one and many, male on female, female on male, male on male, and female on female.

For the sake of trying to recognize, and then categorise the types of behavior, here is a brief summation of the 15 main types:

1. Power-player: legally termed “quid-pro-quo” harassment, these harassers insist on sexual favours in exchange for benefits that they can dispense because of their position in the hierarchy, getting and keeping a job, favourable marks, recommendations, credentials, projects, job promotions, purchase order and other types of opportunities 2. Mother-Father figure (also known as the Counsellor-Helper) – these harassers will try to create mentor-like relationships with their targets, all the while making their sexual intentions with pretensions towards personal, professional, or academic attention.

3. One-of-the-Gang - harassment occurs when groups of men or women embarrass others with lewd comments, physical evaluations, or other unwanted sexual attention. Harassers may act individually in order to belong or impress the others, or groups may gang up on a particular target.

4. Serial harasser – harassers of this type carefully build up an image so that people would find it hard to believe that they would do anyone any harm. They plan their approaches carefully, and strike in private so that it is THEIR word against that of the victims.

5. Groper – whenever the opportunity presents itself, these harassers eyes and hands begin to wander, engaging in unwanted physical contact that may start off seeming totally innocuous, but lead to worse.

6. Opportunist – Opportunist uses physical settings and circumstances, or infrequently occurring opportunities, to mask premeditated or intentional sexual behavior towards targets. This will often involve charging the environment in order to minimize inhibitory effects of the workplace or school, taking advantage of physical tasks to accidentally grope a target.

7. Bully – in this case, sexual harassment is used to punish the victim for some transgression, such as rejection of the harassasers interest or advances, or making the harasser feel insecure about him/herself or his/her abilities. The bully uses sexual harassment to put the victim in his/her “proper place.”

8. Confididante – Harassers of this type approach subordinates, or students, as equals or friends, sharing their own life experiences & difficulties, sharing stories to win admiration & sympathy, and inviting subordinates to share theirs so as to make them feel valued & trusted.

Soon these relationships move into an intimate domain.

9. Situational Harasser - Harassing behavior begins when the perpetrator endures a traumatic event (psychological), or begins to experience very stressful life situations, such as psychological or medical problems, or divorce. The harassment will usually stop if the situation changes, or if the pressures are removed.

10. Pest – This is the stereotypical “won’t take ‘no’ for an answer” who persists in hounding a target for attention & dates even after persistent rejections. This behavior is often misguided, with hopefully no malice intended.

11. Great Gallant – This mostly verbal harassment involves excessive compliments and personal comments that focus on appearance & gender, and are out of place or embarrassing to the recipient. Such comments are sometimes accompanied by leering looks.

12. Intellectual Seducer – Most often found in educational settings, these harassers will try to use their knowledge & skills as an avenue to gain access to students, or information about students, for sexual purposes.

They may require students to participate in exercises or “studies” that reveal information about their sexual experiences, preferences, and habits.

13. Incompetent – These are socially inept individuals who desire the attention of their targets, who do not reciprocate these feelings. They may display a sense of entitlement, believing their targets should feel flattered by their attentions. When rejected this type of harasser may use bullying methods as a form of revenge.

14. Stalking – Persistent watching, following, contacting or observing of an individual, sometimes motivated by what the stalker believes to be love, or by sexual obsession, or even by anger or hostility.

15. Unintentional – Acts or comments of a sexual nature, not intended to harass, can constitute sexual harassment if another person feels uncomfortable with such subjects.

The Scary Face of Sexual Harassment in the Modern Workplace Contrary to what a lot of folk may think, sexual harassment in the workplace is not one-dimensional – indeed it is multi-faceted, intrusive and pernicious.

Investigation of the problem reveals that not only are women vulnerable to marauding men, but surprisingly some men can be the target of predatory females. To add spice to the already hot cauldron, there are also elements of

men hitting on men and women on other females. By far the greatest portion of the action is held (some 98%) by men on vulnerable women.

Complicated? If you think THAT is involved, then it is only a precursor to us highlighting the very real difficulties encountered in trying to establish the real facts of any harassment “incident” – and then being able to design and install working, functioning systems which cater for the real truth to emerge without delay.

One of the difficulties in understanding sexual harassment is that it involves a range of behavior, and is often difficult for the recipient to describe to themselves, and then to others, exactly what they are experiencing. Moreover, behavior and motives vary between individual harassers.

When dealing with any case of sexual harassment, not only is speedy action of the essence to prevent situations careering out of control, but also these very delicate matters must be dealt with appropriately, and then handled with finesse, diplomacy and delicacy. A tall order? You bet! That is why most people run for the hills when confronted by the challenges involved. Paramount is that due process must be allowed, and the rights of individuals – the feelings of human beings – must be upheld.

Whereas, in the past, the problem in its entirety was studiously ignored – perhaps in the vain hope that it would evaporate, and ‘just go away’ – but in today’s world of reality, thank heavens more enlightened managers are now opening themselves to acknowledging that their personnel may indeed be negatively affected by harassment.

Although there is still a very long road to be travelled, some positives are now seeing the light of day with the enactment of the appropriate labour legislation.

This legislative ‘catching up’ is now slowly contributing toward affording the victims a measure of recourse, and punishing the transgressors to hobble their future actions.

Amidst all this though, it is still a sad fact that rumour, innuendo and personal agendas in the workplace are tending to obfuscate and complicate matters, and in the process infringing on the most basic human rights of all concerned.

At the very core of the problem being obscured is the simple fact that people are actually scared out of their socks of reporting cases of harassment – for fear of victimization – and worse still, losing their jobs.

For any problem to be dealt with effectively, we need to enumerate, and then clarify the issues: · What really DEFINES harassment? · What is the root cause – if it indeed exists? · What are the probable outcomes? · How widespread and deeprooted is it in a particular workplace? · Who are the likely perpetrators and can they be identified? · What EFFECTIVE, working avenues are available for victims to be able to report infringements? · What legal recourse is available for what is really a very serious problem? · Are adequately trained and EFFECTIVE personnel on hand for counseling of victims?

As if the problem itself was not already complicated enough, it must be stressed that a MEANINGFUL definition of what Sexual Harassment is all about is critically important, because it is complicated by its many facets, which can involve all, or some of the following: · Verbal harassment typified by crude, sexist or suggestive remarks · Seemingly casual touching or just staring · Subtle pressure from a superior, by way of seemingly innocuous ‘touches’ · Actual rape, in or out of working hours.

Some of the perpetrators in cases of sexual harassment are often smugly dismissive of accusations, and therefore retaliate with spurious remarks such as: ‘I was only joking’ or ‘I had a few beers to help me relax’ – neither of which can be categorized as a valid reason – let alone an excuse.

It is relevant, of course, that any relationship between two consenting adults may not normally be considered as being sexual harassment per se. But the boundary is wafer-thin, and the perspective changes when one of the individuals involved holds a position of authority. e.g. the boss or manager and ‘his’ P.A. – where he subtly takes advantage of the situation to impel or persuade to foster a certain mode of behavior from his victim.

Social Environment & the Contributing Scenarios The way in which you and I were raised in our early home environment is always a MAJOR contributing factor toward how we feel about ourselves in later years, for example:

· Those men that are brought up to believe that to be ‘macho’ is the only way to demonstrate their ‘masculinity’ by means of overt acts of lecherous behavior. · The outdated Victorian Age view that women were supposed to slavishly and even obsequiously surrender to the basal, bordering on primitive, carnal needs of their menfolk. · That woman must not display assertiveness or emancipation at any level, and certainly not in the working environment – and indeed, in the eyes of a chauvinistic male, they are there, in the workplace, under sufferance only.

Sexualized environments are environments where obscenities, sexual joking, sexually explicit graffiti, viewing Internet pornography, sexually degrading posters and objects, etc., are common. None of these behaviors or objects may necessarily be directed at anyone in particular or intended as harassment.

However, they can create an offensive environment, and one that is consistent with "hostile environment sexual harassment".

See Wikipedia: http://creativecommons.org/licenses/by-sa/3.0/ The Glass Ceiling of Gender and Sexuality Perhaps some men actually feel threatened by women who have ‘crossed the divide’ and moved without being invited into demanding careers previously considered to be male preserve. In retaliation almost, some men in positions of authority, resenting the elevation of women, play sexual power games with women in their domain of influence.

Often this is pernicious, because lurking in the shadows is an innate desire to topple women before they reach ANY position of perceived dominance over them.

Who are the perpetrators and where are they likely to be found?

The commonly held view is that only a person in a ‘position of authority’ and working with the victim can fall within the description of being a likely perpetrator – but surprisingly for some, is that the miscreant can even take shape as a client, supplier, contractor, job applicant, or the business owner himself. But, most of all, the individuals are more likely to be found where moral standards – and thus the observation thereof – have been allowed, or even encouraged to degenerate. That can be very dangerous, especially for

those who are emotionally vulnerable, and worse still, sexually unaware individuals.

Moral Decay & the lack of principled behavior · Perhaps because of the demands of modern society, which often necessitates both husband and wife leaving the home daily to earn their daily bread, stress and divorce is often not far off the horizon.

These two factors, away from home often makes people, especially women even more vulnerable to sexual advances. · From some examples set by many leaders, to various degrees, across the globe, it has become an open question as to what behavior is, is or is not acceptable. · Some people equate being closely involved, and true to one person as bordering on being “old-fashioned” and even boring. They often tend to forget their children at home who are usually blissfully unaware of any goings-on away from home. The situation can be very dangerous, because seemingly innocent flirtations can then easily escalate into full-blooded affairs, with all the negative consequences flowing from that scenario.

Veracity and Victims Here we are talking about something very personal when referring to the evidence of the offended party – the victim: · Ironically, where it should, in truth, be the exact opposite, the integrity of the VICTIM of sexual harassment is called into question, almost akin to being the office “Mata Hari” (Mata Hari (1876-1917) was the stage name of the Dutch exotic dancer and prostitute Gertrud Margarete Zelle, who was shot by the French as a spy on 15 October 1917) and it is SHE who is put in the dock! The offender meanwhile, is often quietly laughing up his sleeve! · Company executives may often tend to lend more credence to the word of other senior executives and managers. Men are notorious for sticking together out of what they perceive as loyalty to their colleague. · There may be an element of collusion in any coverup where more than one male is involved. · Where the perpetrator is highly qualified, and has worked hard to acquire skills, and thus may be difficult, and costly to replace, his peccadilloes – politely called indiscretions – may be tolerated for the “sake of the company.”

· Absurd as it may sound, some women may tend to believe, wrongly, that it is THEY who have actually invited the promiscuous behavior. · The executive may actually be embarrassed, and would rather brush the matter away in an effort to maintain the “status quo.”

Inadequate company policy, and if in place, is conveniently ignored Sexual Harassment Legislation has variously been drawn up, and enacted to various degrees across the globe, but, in spite of this: · Throughout the world there seems to be a sad, indeed frightening lack from some companies of a clear policy, then complaint procedures and finally disciplinary action. · Many women, feeling intimidated by the system, and the possible consequences of their reporting a matter, together with inadequate company support structures, would actually rather just resign from the company, or remain “resigned” and therefore passive. · Where the perpetrator is inadequately dealt with, they see this as an incentive to continue their actions.

A typical victim profile Some folk are surprised to hear that women of ALL ages are harassed, whether they are physically attractive, or plain, sexily or even staidly dressed. Nor does her highly placed position, financial status or race play a part. None of the foregoing affords her either protection or insurance. Indeed, some men see all of these as some sort of challenge – and hooray, if she happens to fall prey, this engorged lion now only looks forward eagerly to his next conquest, and then kill.

Nothing could be closer to the truth when saying: “It is a veritable jungle out there!”

The REALLY vulnerable women Some women are undoubtedly much more vulnerable than others, and can fall into what may be called a “High Risk profile”: · Saleswomen, who may be under current personal financial pressure to “make that sale” and thus may succumb to sexual pressure. Men are often very quick to pick up on the telltale signs, and go in for the kill without compunction. · Naturally friendly women, who some men erroneously read as being sexually available. · A lack of belief in their abilities.

· Divorced women who, in their heart of hearts, only really want a decent, normal relationship, are often taken in by confidence tricksters who readily cash in on the “one night stand” and then literally leave that woman stranded and again alone.

The “hidden” non-monetary costs of harassment.

Apart from the cost to the quality of human lives, lurking like a killer shark in the shallows is the often under-appreciated cost to company profits, neither of which can be planned or budgeted for – but the effects are enormous. But the incalculable long term cost is to human lifestyles and mores in the form of: · High absenteeism: e.g. by people simply staying away from work, blaming other reasons at home, and this can either be a result or symptom of the REAL underlying problem · Badmouthing of the company from outsiders, and from within the ranks can result in people not applying for job vacancies as they occur. · Quality staff may tend to resign, and are difficult and costly to replace. · Company ethics are undermined, onthejob discipline deteriorates and respect across the board (managers and fellow workers) evaporates. · There can be a tendency to include what are seen by a manager or supervisor as “available” (read: sexually available) women at outside team events, conferences and parties where they do not actually perform a role, and this will incur costs in the form of travelling expenses and hotel rooms, as if they were the office concubines. · Unwarranted financial “favours” are doled out in the form of loans, perks and unearned bonuses and increases, without reference to job performance or true abilities. · Concomitant stress, and thus poor productivity by potential victims So, it can only be concluded that the ramifications of sexual harassment in the modern workplace are, to say the least, extreme, wide ranging and allencompassing. For these reasons, it should now be abundantly clear that it is critically important that many employers take heed of the danger signs, and wake up to the reality that they may actually be polluting their own doorstep.

Sadly, for some it may even be too late. The drums are rolling – aware individuals, you and I, need to stop just sitting on the sidelines, and play our role in countering this malignant scourge. You can play your part in a simple

way: just bring the seriousness of harassment to the attention of managers and employees alike by encouraging them to read this article.

So, how CAN YOU help? · By helping where you can, to formulate policies that are sensible, workable and then make sure that they are actually APPLIED. · Offering your services, however small, to the REAL victims to help them with the far-reaching SERIOUS consequences of harassment. · Companies owners and directors should not tolerate such behavior from their staff or management at any time and make sure that they KNOW that they will suffer grave consequences if they choose to ignore complaints and take no action to stop the behaviors.

Lack of Company Policy The elimination of sexual harassment in the workforce is extremely important for every employer. There is a financial imperative to eliminate improper conduct as well as a moral one, as such conduct can result in extensive monetary liability imposed by courts that determine sexual harassment has occurred. · Many South African companies don’t have clear policies, and then complaint & disciplinary procedures to deal with harassment – or even if they have, do not implement them · Recent research by a male researcher indicates that 76% of the women respondents said they had been harassed at work, while few of their companies had relevant policies.

Legal Costs A landmark sexual harassment case that cost the employer more than• R82 000.00•in Bongiwe Ntsabo v Real Security (C259/2000)•The employee, a female security guard, was employed by a security firm for about 7 months. She claimed that her supervisor had sexually harassed her, giving full details of the serious extent of the harassment. She had allegedly informed a member of management, but nothing was done about it, and this caused her to resign.

The company denied the harassment occurred and if it was found to have occurred, it was never reported to management.

The “balance of probability”• The Labour Court found that the alleged harasser was not a credible witness, as his testimony changed during the proceedings, as did the testimony of other company members. On the balance

of probability, the employee was judged to have told the more truthful version, and that the sexual harassment had in fact taken place.

The Court held that the company’s refusal to deal with the sexual harassment claims, which resulted in the employee’s resignation, qualified as constructive dismissal. The dismissal was declared to be unfair, and the company was ordered to pay 12 months’ compensation– an amount of R12 000.00.

Furthermore, in terms of the Employment Equity Act, the company was ordered to pay damages to the employee for future medical costs (psychological trauma) in the amount of R20 000.00 plus a sum of R50 000.00 for general damages.•They also had to pay the legal costs of the employee.

"Woman sues Naspers for R12m over sex pest" In what has been described as one of the most extensive lawsuits about employers' responsibility to stamp out sexual harassment in the workplace, a former employee of Naspers has sued the company for R11, 8-million (The Star, 04 April, 2002).

The plaintiff’s lawyers asked the court to find that Naspers had a duty of care to create a working environment in which the dignity of its employees was respected, and to take all reasonable steps to preserve and protect the bodily integrity, psychological well-being, mental tranquillity of its employees, and to prevent them from being sexually harassed. Lawyers for Naspers have denied they owed such a duty of care towards the plaintiff. · As shown above, companies can incur considerable legal costs if the problem is just ignored ( a recent case in the US amounted to some $15 million!) The Industrial Court J v M (1989, the first reported case of sexual harassment in SA) ruled that “an employer undoubted has a duty to ensure that its employees are not subjected to this form of violation in the workplace.” Action may be brought against an employer who knows or ought to know about harassment and fails to take appropriate preventative action. Where there are inadequate channels of complaint, an employer may be held liable even if there was no knowledge of harassment. · Whereas sexual harassment was, in the past, usually dealt with by the Industrial Court as an unfair labour practice, harassment of an employee or prospective employee by an employer, or by an employee of the same employer is now expressly prohibited. Because of being declared unlawful, such behavior may lead to both criminal action and civil claims. · If a company has no clear policy on sexual harassment, it may also have problems waiting around the corner if it needs to take disciplinary steps against an harasser. Lack of clear definition if unacceptable behavior would make it easier for a harasser to take a company to court to appeal

against disciplinary steps or dismissal. In a case a few years ago a senior manager in a large SA company was dismissed when many years of serious harassment of more than a dozen women came to light. His behavior had cost the company heavily in terms of productivity losses, the cost of favours, and the company image. However, when he appealed in the Industrial Court, the company settled out of court because they feared losing the case, as they had no specific policy or clear definition of sexual harassment at the time.

Personal Costs – not necessarily financial · The victims usually suffer the highest personal costs, although the perpetrators and even observers can also be harmed if harassment is allowed to go on uncontrolled. · Few people who have not experienced it personally understand the distress and even terror sexual harassment can cause. Most women experience it as an insult that undermines their self-confidence and thus also their personal effectiveness. It may also undermine their trust in men and in people in authority. in the case of women who were sexually abused as children or as adults, another negative experience can cause serious psychological damage. · Women who resign because of sexual harassment problems, often have difficulty getting good references from their previous employers, or giving reasons for having left their previous job, and thus may have difficulty in finding another position. Obviously, this could disrupt such a woman’s entire life. · Women who resist harassment, or complain, may be victimized, e.g. overlooked for promotion. This can hold back their career development and personal growth. · The harassers themselves could fall into bad habits if their behavior is allowed to continue unchecked. This can negatively affect their effectiveness at work, their personal relationships, their marriage and their personal development. Particularly in the case of last two types of the harassers mentioned above, the serial and situational harassers, ignoring their behavior could cause a deep-seated problem to go untreated. · Men or women who observe harassment going unchecked may lose their trust in their superiors, may feel threatened by the situation if they believe that others are favoured because they play along, or may be tempted to indulge in the same type of behavior if that appears to be the “rules of the game” in their company. · To make matters worse, their employers may urge them to comply Clearly, the “hidden” costs of harassment are enormous and far-reaching. It is in every employers interest to be proactive & prevent the problem, rather than having to redress it after damages have been suffered. Aware individuals can play a major

role by bringing the seriousness of harassment to the attention of management and employees, by helping to formulate and implement appropriate policies, and by helping victims to deal with the consequences of harassment.

Many practical steps can be taken, as part of a integrated program to counter harassment: o A clear policy from management § Management must develop, with consultants – see: http://www.workinfo.com and in-company specialists, and with relevant staff organizations and unions, a clear definition of, and a policy on sexual harassment § Concerned people and journalists should also be encouraged to help publicise the critical need for such policies. o Awareness of the problem, and the rights of others § Managers and all male and female employees must be made aware of the problems inherent in harassment, and must know how to handle it. § If a clear policy exists, and it is well promoted, both the person being harassed and the person considering harassing someone, will know what the individual’s rights are – what is acceptable, and what is not; also where the person harassed can complain. This should reduce markedly the likelihood of harassment. o Complaints and Disciplinary Procedures § There must be clear guidelines and disciplinary procedures in cases of harassment, and these must be communicated to all staff members. § Appropriate staff members can be selected, appointed and trained as “helpers” to assist and then support the “complaints officers” with sufficient authority to institute measures where necessary. § In large companies, counselors could be trained, and then appointed to provide support and give advice to staff who are sexually harassed, and to counsel harassers if required. o Other supporting measures § Assertiveness training and development of a healthy selfesteem will help women to deal with harassers; & will also reduce the need in some men to try to prove themselves by harassing colleagues. § An effective employment equity program, that ensures wellplanned career paths for all – based on merit, whilst also ensuring that people disadvantaged in the past get a fair deal – will reduce the vulnerability of individuals to harassment by people who abuse their power and authority. § A positive Corporate culture in which the rights and dignity of all staff members is respected, and a positive example is set my

management, will do much to create a healthy environment in which sexual harassment cannot flourish.

Although no policy can be expected to totally eliminate the problem of sexual harassment, it is clear that an informed awareness of the problem, and of ways to deal with it will help to reduce its extent dramatically. Women, together with personnel and employee assistance professionals, must take the initiative and encourage their respective companies to act against harassment if a comprehensive program has not yet been put in place.

NOTICE 1367 OF 1998 NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL LABOUR RELATIONS ACT, 1995 NOTICE OF CODE OF GOOD PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES Notice is hereby given in terms of section 203 (2) of the Labour Relations Act, 1995 (Act No. 1995), that the National Economic Development and Labour Council has issued under section 203 (1) of that Act a code of good practice on the handling of sexual harassment cases as set out in the Schedule.

SCHEDULE Code of Good Practice on the Handling of Sexual Harassment Cases 1 Introduction 1. The objective of this code is to eliminate sexual harassment in the workplace.

2. This code provides appropriate procedures to deal with the problem and prevent its recurrence.

3. This code encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.

2. Application of the code (1) Although this code is intended to guide employers and employees, the perpetrators and victims of sexual harassment may include: 1. Owners.

2. Employers.

3. Managers.

4. Supervisors.

5. Employees.

6. Job applicants.

7. Clients.

8. Suppliers.

9. Contractors.

10. Others having dealings with a business.

(2) Nothing in 2(1) above confers the authority on employers to take disciplinary action in respect of non-employees.

(3) A non-employee who is a victim of sexual harassment may lodge a grievance with the employer of the harasser where the harassment has taken place in the workplace or in the course of the harasser's employment.

3. Definition of sexual harassment (1) Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.

(2) Sexual attention becomes sexual harassment if: a.

The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or b.

The recipient has made it clear that the behaviour is considered offensive; and/or c.

The perpetrator should have known that the behaviour is regarded as unacceptable.

4. Forms of sexual harassment (1) Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the examples listed as follows: a.

Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex. b.

Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling directed at a person or group of persons. c.

Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects. d.

Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.

(2) Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.

5. Guiding principles (1) Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised, or fear reprisals. Implementing the following guidelines can assist in achieving these ends: a.

Employers/management and employees are required to refrain from committing acts of sexual harassment.

b.

All employers/management and employees have a role to play in contributing towards creating and maintaining a working environment in which sexual harassment is unacceptable. They should ensure that their standards of conduct do not cause offence and they should discourage unacceptable behaviour on the part of others. c.

Employers/management should attempt to ensure that persons such as customers, suppliers, job applicants and others who have dealings with the business, are not subjected to sexual harassment by the employer or its employees. d.

Employers/management are required to take appropriate action in accordance with this code, when instances of sexual harassment which occur within the workplace are brought to their attention.

(2) This code recognises the primacy of collective agreements regulating the handling of sexual harassment cases, and is not intended as a substitute for disciplinary codes and procedures containing such measures, where these are the subject of collective agreements, or the outcome of joint decision making by an employer and a workplace forum. However, collective agreements and policy statements should take cognisance of and be guided by the provisions of this code.

6. Policy statements (1) As a first step in expressing concern and commitment to dealing with the problem of sexual harassment, employers should issue a policy statement which should provide that: a.

All employees, job applicants and other persons who have dealings with the business, have the right to be treated with dignity. b.

Sexual harassment in the workplace will not be permitted or condoned. c.

Persons who have been subjected to sexual harassment in the workplace have a right to raise a grievance about it should it occur and appropriate action will be taken by the employer.

(2) Management should be placed under a positive duty to implement the policy and take disciplinary action against employees who do not comply with the policy.

(3) A policy on sexual harassment should also explain the procedure which should be followed by employees who are victims of sexual harassment. The policy should also state that: a.

Allegations of sexual harassment will be dealt with seriously, expeditiously, sensitively and confidentially. b.

Employees will be protected against victimisation, retaliation for lodging grievances and from false accusations.

(4) Policy statements on sexual harassment should be communicated effectively to all employees.

7. Procedures Employers should develop clear procedures to deal with sexual harassment. These procedures should ensure the resolution of problems in a sensitive, efficient and effective way.

(1) Advice and Assistance Sexual harassment is a sensitive issue and a victim may feel unable to approach the perpetrator, lodge a formal grievance or turn to colleagues for support. As far as is practicable employers should designate a person outside of line management whom victims may approach for confidential advice. Such a person: a.

Could include persons employed by the company to perform inter alia such a function, a trade union representative or co-employee, or outside professionals. b.

Should have the appropriate skills and experience or be properly trained and given adequate resources. c.

Could be required to have counseling and relevant labour relations skills and be able to provide support and advice on a confidential basis.

(2) Options to resolve a problem a.

Employees should be advised that there are two options to resolve a problem relating to sexual harassment. Either an attempt can be made to resolve the problem in an informal way or a formal procedure can be embarked upon. b.

The employee should be under no duress to accept one or the other option.

(3) Informal procedure a.

It may be sufficient for the employee concerned to have an opportunity where she/he can explain to the person engaging in the unwanted conduct that the behaviour in question is not welcome, that it offends them or makes them uncomfortable, and that it interferes with their work. b.

If the informal approach has not provided a satisfactory outcome, if the case is severe or if the conduct continues, it may be more appropriate to embark upon a formal procedure. Severe cases may include: sexual assault, rape, a strip search and quid pro quo harassment.

(4) Formal procedure Where a formal procedure has been chosen by the aggrieved, a formal procedure for resolving the grievance should be available and should: a.

Specify to whom the employee should lodge the grievance. b.

Make reference to timeframes which allow the grievance to be dealt with expeditiously. c.

Provide that if the case is not resolved satisfactorily, the issue can be dealt with in terms of the dispute procedures contained in item 7(7) of this code.

(5) Investigation and disciplinary action a.

Care should be taken during any investigation of a grievance of sexual harassment that the aggrieved person is not disadvantaged, and that the position of other parties is not prejudiced if the grievance is found to be unwarranted. b.

The Code of Good Practice regulating dismissal contained in Schedule 8 of this Act, reinforces the provisions of Chapter VIII of this Act and provides that an employee may be dismissed for serious misconduct or repeated offences. Serious incidents of sexual harassment or continued harassment after warnings are dismissible offences. c.

In cases of persistent harassment or single incidents of serious misconduct, employers ought to follow the procedures set out in the Code of Practice contained in Schedule 8 of this Act. d.

The range of disciplinary sanctions to which employees will be liable should be clearly stated, and it should also be made clear that it will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.

(6) Criminal and civil charges A victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code.

(7) Dispute resolution Should a complaint of alleged sexual harassment not be satisfactorily resolved by the internal procedures set out above, either party may within 30 days of the dispute having arisen, refer the matter to the CCMA for conciliation in accordance with the provisions of section 135 of this Act. Should the dispute remain unresolved, either party may refer the dispute to the Labour Court within 30 days of receipt of the certificate issued by the commissioner in terms of section 135(5).

8. Confidentiality (1) Employers and employees must ensure that grievances about sexual harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential.

(2) In cases of sexual harassment, management, employees and the parties concerned must endeavour to ensure confidentiality in the disciplinary enquiry. Only appropriate members of management as well as the aggrieved person, representative, alleged perpetrator, witnesses and interpreter if required, must be present in the disciplinary enquiry.

(3) Employers are required to disclose to either party or to their representatives, such information as may be reasonably necessary to enable the parties to prepare for any proceedings in terms of this code.

(4) The relevant provisions of section 16 of this Act will apply to the disclosure of information in terms of this code.

9. Additional sick leave Where an employee’s existing sick leave entitlement has been exhausted, the employer should give due consideration to the granting of additional sick leave in cases of serious sexual harassment where the employee on medical advice requires trauma counseling.

10. Information and education (1) The Department of Labour should ensure that copies of this code are accessible and available.

(2) Employers and employer organisations should include the issue of sexual harassment in their orientation, education and training programmes of employees.

(3) Trade unions should include the issue of sexual harassment in their education and training programmes of shop stewards and employees.

(4) CCMA commissioners should receive specialised training to deal with sexual harassment cases

Sexual Harassment Complaint Form Complaint No.: ______________________________

1.

Name: _________________________________________________________________

2.

I/D Number: ____________________________________________________________

3.

Job Title: _______________________________________________________________

4.

Company Name_____ ____________________________________________________

5.

Work Address: __________________________________________________________

6.

Work Telephone Number: _________________________________________________

7.

Home Address: __________________________________________________________

8.

Home Telephone Number: _________________________________________________

9.

Date Complainant Reported Sexual Harassment to: ______________________________ Departmental Supervisor/Manager/Administrator________________________________

10.

Date and Method of Complainant Received : _________________ _______ Walk-In Complainant _______ Phone Call by Complainant, Followed by Appointment _______ Departmental Referral (Name of person making the report, department, and date referral was received : _________________________________________ ________________________________________________________________________ _______ Other (Please Describe): ___________________________________________ ________________________________________________________________________

11.

Date of Intake Interview: __________________________________________________

12.

Description of the alleged sexual harassment. Describe each incident of harassment separately, including dates and locations for each incident. If the complainant cannot remember exact dates, include approximate dates to the best of the complainant’s recollection (use as many pages as necessary). ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

13.

Name, job title, location, and telephone number of each individual who allegedly harassed the complainant. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

14.

State whether each alleged harasser is a co-worker or supervisor of complainant. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

15.

Name, job title, location, and telephone number of any witness to any incident described by the complainant. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

PRIOR ACTION REGARDING THESE HARASSMENT ALLEGATIONS

16.

Prior to bringing this complaint, has the complainant described the harassment to anyone, including supervisor personnel or co-workers employed by the Company? _______ Yes

_______ No

If yes, list the following: Name, job title, work location, and telephone number of any person to whom the complainant described the incident; the date or approximate date the complainant brought the incident to the other employee’s attention. Describe any action taken to investigate or resolve the harassment. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

POSSIBLE PRIOR INCIDENTS INVOLVING OTHER EMPLOYEES

17.

Does the complainant know of any other employee who has experienced similar sexual harassment in the same company or by the same individual? _______ Yes

_______ No

If yes, provide the name, job title, work location, and telephone number of each such employee; and a description of the harassment, to the best of the complainant’s knowledge. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 18.

Has the complainant filed a union grievance or claim with any other agency? _______ Yes

_______ No

If yes, what union or agency? ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

Complainant’s Signature: ____________________________________ Date: ______________

Witness: __________________________________________________ Date: ______________

Index A Actual rape, in or out of working hours.................................................................................................... 19 actually invited the promiscuous behavior................................................................................................ 22 Advise the aggrieved person of the options available............................................................................... 13 All unwanted physical contact..................................................................................................................... 6 Appropriate staff members can be selected............................................................................................... 27 Are adequately trained and EFFECTIVE personnel on hand for counseling of victims........................... 19 Ask a helper to accompany you................................................................................................................. 13 Ask a helper to mediate............................................................................................................................. 13 Ask the supervisor (or a helper) to speak to the alleged harasser.............................................................. 13 Asking a helper or supervisor to speak to the alleged harasser on behalf of the complainant.................. 14 Asking the Helper to accompany the complainant.................................................................................... 14 Asking the Helper to mediate.................................................................................................................... 14 Attempted or actual kissing or fondling...................................................................................................... 6 Awareness of the problem, and the rights of others.................................................................................. 27 B Bad-mouthing of the company from outsiders......................................................................................... 23 balance of probability............................................................................................................................... 24 behavior had cost the company heavily.................................................................................................... 26 Behaviour constituting sexual harassment.................................................................................................. 6 behaviour is considered offensive............................................................................................................... 6 behaviour is regarded as unacceptable........................................................................................................ 6 Behaviour which does not constitute sexual harassment............................................................................ 7 Bongiwe Ntsabo v Real Security.............................................................................................................. 24 Bully.......................................................................................................................................................... 16 C Can harmless flirtation be categorized as sexual harassment................................................................... 11 casual touching or just staring................................................................................................................... 19 CCMA for reconciliation............................................................................................................................ 2 clear policy exists, and it is well promoted............................................................................................... 27 clear policy from management.................................................................................................................. 27 Comments about a person’s sexual habits.................................................................................................. 6 companies can incur considerable legal costs........................................................................................... 25 Companies owners and directors.............................................................................................................. 24 Company ethics are undermined............................................................................................................... 23 Company executives may often tend to lend more credence.................................................................... 21 Complaining about harassment................................................................................................................. 13 Complaints and Disciplinary Procedures.................................................................................................. 27 Concerned people and journalists............................................................................................................. 27 Concomitant stress.................................................................................................................................... 23 conduct not directed specifically at one person........................................................................................ 10 conferences and parties............................................................................................................................. 23 Confidentiality............................................................................................................................................ 9 Confididante.............................................................................................................................................. 16 constitution of the Republic of South Africa.............................................................................................. 5 cost to company profits............................................................................................................................. 23 costly to replace........................................................................................................................................ 21

counsel harassers if required..................................................................................................................... 27 D Dealing with informal complaints............................................................................................................ 13 DECLARATION...................................................................................................................................... 39 defining sexual harassment......................................................................................................................... 2 Defining Sexual Harassment..................................................................................................................... 10 Definition.................................................................................................................................................... 5 desire to topple women............................................................................................................................. 20 disciplinary action including dismissal....................................................................................................... 5 Displaying/sourcing offensive material/jokes on PC’s and/or e-mailing such material............................. 6 distress and even terror sexual harassment can cause............................................................................... 26 Divorced women....................................................................................................................................... 23 E early home environment........................................................................................................................... 19 effective employment equity program...................................................................................................... 27 effort to maintain the “status quo.”........................................................................................................... 22 element of collusion in any cover-up........................................................................................................ 21 elimination of sexual harassment in the workforce.................................................................................. 24 Employee Assistance Programme............................................................................................................... 9 employee of Naspers................................................................................................................................. 25 Employment Equity Act........................................................................................................................... 25 events that are part of official business..................................................................................................... 39 examples set by many leaders................................................................................................................... 21 executive may actually be embarrassed.................................................................................................... 22 F female security guard................................................................................................................................ 24 financial imperative to eliminate improper conduct................................................................................. 24 Flirtatious banter when it is mutually acceptable........................................................................................ 7 Follow up on incidents.............................................................................................................................. 13 FORMAL complaint has been made........................................................................................................ 13 Formal Procedure........................................................................................................................................ 8 Forms of harassment relationships can include........................................................................................ 15 frightening lack from some companies of a clear policy.......................................................................... 22 G Gestures and other non-verbal behaviour................................................................................................... 6 Glass Ceiling of Gender and Sexuality..................................................................................................... 20 Great Gallant............................................................................................................................................. 17 Groper....................................................................................................................................................... 16 H harassers themselves could fall into bad habits........................................................................................ 26 Harassment scenarios................................................................................................................................ 15 Helpers are not allowed to make any decisions for the complainant........................................................ 12 High absenteeism...................................................................................................................................... 23 High Risk profile....................................................................................................................................... 22 hostile environment sexual harassment..................................................................................................... 20

how CAN YOU help?............................................................................................................................... 24 How widespread and deep-rooted is it in a particular workplace............................................................. 19 http://www.workinfo.com......................................................................................................................... 27 I Inadequate company policy, and if in place, is conveniently ignored...................................................... 22 inadequate company support structures.................................................................................................... 22 incalculable long term cost is to human lifestyles.................................................................................... 23 incentive to continue their actions............................................................................................................ 22 Incompetent............................................................................................................................................... 17 Indecent exposure....................................................................................................................................... 6 Indecent exposure of private parts in view of others.................................................................................. 6 Industrial Court................................................................................................................................... 25, 26 Industrial Court J v M............................................................................................................................... 25 Informal Procedure..................................................................................................................................... 8 Intellectual Seducer................................................................................................................................... 17 L Labour Court............................................................................................................................................. 24 lack of belief in their abilities................................................................................................................... 22 Lack of Company Policy.......................................................................................................................... 24 large companies, counselors could be trained........................................................................................... 27 Legal Costs................................................................................................................................................ 24 M macho........................................................................................................................................................ 20 male researcher indicates that 76% of the women respondents said they had been harassed................... 24 Many women, feeling intimidated by the system..................................................................................... 22 Mata Hari.................................................................................................................................................. 21 Men are notorious for sticking together.................................................................................................... 21 Men or women who observe harassment going unchecked...................................................................... 26 miscreant can even take shape as a client, supplier.................................................................................. 20 Moral Decay & the lack of principled behavior....................................................................................... 21 moral standards......................................................................................................................................... 20 Mother-Father figure................................................................................................................................. 16 N Naspers had a duty of care........................................................................................................................ 25 Naturally friendly women......................................................................................................................... 22 no clear policy on sexual harassment........................................................................................................ 25 no policy can be expected to totally eliminate the problem...................................................................... 28 no victimization if complaints are lodged................................................................................................. 12 O Occasional compliments............................................................................................................................. 7 Occasional jokes or other behaviours whereby the intent is not meant to be offensive............................. 7 Offering your services............................................................................................................................... 24 old-fashioned............................................................................................................................................. 21 One-of-the-Gang....................................................................................................................................... 16 Opportunist............................................................................................................................................... 16

Other supporting measures....................................................................................................................... 27 outdated Victorian Age view.................................................................................................................... 20 P perpetrator is highly qualified................................................................................................................... 21 perpetrator is inadequately dealt with....................................................................................................... 22 perpetrators in cases of sexual harassment are often smugly dismissive of accusations.......................... 19 Persistent and unwelcome flirting............................................................................................................... 6 Personal Costs........................................................................................................................................... 26 Pest............................................................................................................................................................ 17 Physical behaviour...................................................................................................................................... 6 position of authority.................................................................................................................................. 20 positive Corporate culture......................................................................................................................... 27 positive working environment of DIGNITY & RESPECT...................................................................... 12 potentially thorny matter of cultural differences....................................................................................... 10 Power-player............................................................................................................................................. 16 practical steps can be taken....................................................................................................................... 27 Preamble..................................................................................................................................................... 5 Procedure.................................................................................................................................................... 7 promote the role of helpers & staff counselors......................................................................................... 12 Psychological sexual behaviour.................................................................................................................. 7 public display of pornographic or other offensive...................................................................................... 6 Q Quality staff may tend to resign................................................................................................................ 23 Quid pro quo harassment............................................................................................................................ 7 R ramifications of sexual harassment in the modern workplace.................................................................. 23 REALLY vulnerable women.................................................................................................................... 22 Repeated unwanted social invitations for dinner, drinks or movies........................................................... 7 Requiring/requesting a subordinate to wear sexy, revealing, or suggestive clothes................................... 7 resenting the elevation of women............................................................................................................. 20 responsibility of senior staff...................................................................................................................... 12 right to lodge a grievance............................................................................................................................ 5 Role of Senior Staff.................................................................................................................................. 12 S sake of the company.................................................................................................................................. 21 Saleswomen.............................................................................................................................................. 22 Scary Face of Sexual Harassment in the Modern Workplace................................................................... 17 Section 135 of the Labour Relations Act.................................................................................................... 2 seemingly innocent flirtations................................................................................................................... 21 senior manager in a large SA company.................................................................................................... 26 serial and situational harassers.................................................................................................................. 26 Serial harasser........................................................................................................................................... 16 Sexual favouritism...................................................................................................................................... 7 Sexual favours............................................................................................................................................. 7 Sexual Harassment Complaint Form........................................................................................................ 35 Sexual Harassment Legislation................................................................................................................. 22 Sexual Harassment Policy........................................................................................................................... 5

Sexual Harassment policy......................................................................................................................... 12 Sexualized environments are environments where obscenities................................................................ 20 Showing of pornographic or sexually explicit movies or slides................................................................. 6 single incident of harassment...................................................................................................................... 5 Situational Harasser.................................................................................................................................. 17 Social Environment & the Contributing Scenarios................................................................................... 19 Social functions......................................................................................................................................... 39 South African companies don’t have clear policies.................................................................................. 24 Speaking directly to the alleged harasser.................................................................................................. 13 staff traveling outside of the working place.............................................................................................. 39 Stalking..................................................................................................................................................... 17 stress and divorce...................................................................................................................................... 21 Subtle pressure from a superior................................................................................................................ 19 supportive of the aggrieved person........................................................................................................... 13 T tendency to include what are seen by a manager or supervisor as “available”......................................... 23 The role of Human Resources (HR) and counselors................................................................................. 11 The unwelcome display of sexually explicit/undesirable pictures and objects........................................... 6 trained under the SETA structure as a mentor.......................................................................................... 11 treated with dignity..................................................................................................................................... 5 two consenting adults................................................................................................................................ 19 Types of Harassment................................................................................................................................. 15 typical victim profile................................................................................................................................. 22 U Unintentional............................................................................................................................................. 17 United Nations General Recommendation 19 in 1992............................................................................... 2 Unwarranted financial “favours”.............................................................................................................. 23 Unwelcome and in-appropriate enquiries about a person’s sex life........................................................... 6 Unwelcome comments with sexual overtones............................................................................................ 6 Unwelcome gestures................................................................................................................................... 6 Unwelcome graphic comments about a person’s body............................................................................... 6 Unwelcome innuendoes, suggestions and hints.......................................................................................... 6 Unwelcome jokes that cause awkwardness or embarrassment................................................................... 6 Unwelcome sex related jokes or insults...................................................................................................... 6 Unwelcome sexual advances...................................................................................................................... 6 Unwelcome telephone calls with sexual overtones..................................................................................... 6 Unwelcome whistling directed at a person or group of persons................................................................. 6 Useful Background research and information on sexual harassment....................................................... 15 V Veracity and Victims................................................................................................................................. 21 Verbal harassment..................................................................................................................................... 19 Verbal threats or abuse................................................................................................................................ 6 VICTIM of sexual harassment is called into question.............................................................................. 21 victims usually suffer the highest personal costs...................................................................................... 26 viewing Internet pornography................................................................................................................... 20 Visual sexual harassment............................................................................................................................. 6

W What action should the complainant take if harassed................................................................................ 13 What are the probable outcomes................................................................................................................ 19 What EFFECTIVE, working avenues are available for victims to be able to report infringements......... 19 What if false complaints are made............................................................................................................. 15 What if someone dresses in a provocative manner.................................................................................... 11 What if the harassment is outside of the company workplace................................................................... 11 What is the root cause – if it indeed exists................................................................................................ 19 What legal recourse is available for what is really a very serious problem............................................... 19 What really DEFINES harassment............................................................................................................ 19 When may it be advisable to lodge a formal complaint............................................................................ 14 Who are the likely perpetrators and can they be identified....................................................................... 19 Who are the perpetrators and where are they likely to be found............................................................... 20 Who can assist you if you are experiencing harassment........................................................................... 11 Who can help you if you are accused of harassment................................................................................. 12 Wikipedia................................................................................................................................................... 20 Will the helpers provide counseling.......................................................................................................... 12 woman must not display assertiveness..................................................................................................... 20 Woman sues Naspers for R12m over sex pest........................................................................................... 25 women at outside team events.................................................................................................................. 23 women of ALL ages are harassed............................................................................................................. 22 women who have ‘crossed the divide’...................................................................................................... 20 Women who resign because of sexual harassment.................................................................................... 26 Women who resist harassment.................................................................................................................. 26 Writing a letter to the alleged harasser...................................................................................................... 13 Z zero tolerance approach.............................................................................................................................. 5 “ “hidden” non-monetary costs of harassment.............................................................................................. 23