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Sexual harassment and gender discrimination are not the same

Ivan Israelstam

Sexual harassment

Section 6(1) of the Employment Equity Act (EEA) prohibits employers from, directly or indirectly, unfairly discriminating against an employee on any ground including gender and sex. Also, section 6(3) categorises employee harassment on these grounds as unfair discrimination and prohibits these practices. However, in the definition section of the EEA ‘sexual’ or ‘gender’ discrimination aren’t defined. As these two terms are often used interchangeably, it’s important to assess why these have different legal meanings.

Here’s one possible distinction:

  • ‘Gender’ discrimination may refer purely to discrimination against an employee because she is female or because he is male. For example, requiring female employees to retire at 60 and males at 65 is gender discrimination and not sexual discrimination because no sex act or sexual-related act took place.

Another example of gender discrimination based on my definition would be where an employer forces men, but not women, to belong to a benefit scheme.*

A further example of gender discrimination would be where men are promoted into managerial positions at the expense of suitably qualified women.

  • ‘Sexual’ discrimination could be when, regardless of the employee’s gender, an employer carries out an unacceptable sex-related act against the employee. For example, the employer may have sexually harassed the employee by grabbing his buttocks:

- If, for instance, the harasser and victim were both men there is clearly no gender discrimination but rather unfair behaviour relating to sex in the sense of sexual desire.

 - Even if the employer and employee were of different genders the act is a sexual one rather than discrimination on the grounds that the victim is of a particular gender. The gender of the parties becomes secondary and incidental. What is primary is that the employer infringed on the employee’s right not to be touched in a sexual manner.

Sexual Harassment






If my definitions of, and distinctions between, the two concepts are correct then some legal disputes are being referred incorrectly. For example:

  • In the case of Benjamin vs University of Cape Town (2003, 11 BLLR 1209), Mr Benjamin was turned down for a position of senior subject librarian.
  • However, the position was given to a woman. 
  • In the Labour Court, Benjamin alleged that this amounted to unfair discrimination based on sex. 
  • However, in my view this should have been a gender discrimination dispute because Benjamin didn’t allege there was any sexually related behaviour. His complaint was based solely on the allegation that a woman had got the job instead of himself. His complaint revolved purely around the gender classification of the successful and unsuccessful job candidates.

Sexual discrimination and sexual harassment are 2 different things

Remember that sexual discrimination and sexual harassment are legally not confined to touching in a sexual way. If you, the employer, allow such incidents to occur you - and not the actual perpetrator - will land up in court.

In the case of Ntsabo vs Real Security:

  • The Labour Court found that a sexually harassed employee had been unfairly discriminated against by her employer. This was not because the employer itself had sexually harassed the employee but because the employer didn’t take the necessary action to deal with the perpetrator’s behaviour.
  • As the employer thereby infringed the Employment Equity Act’s section 60’s provisions the court awarded substantial damages against the employer.

Discrimination can take place which involves both my definitions of sexual and gender discrimination:

  • For example, in a company where women aren’t promoted into management positions because of their gender, the male MD may offer a female employee a promotion if she sleeps with him. Or he may refuse to consider her application because she’s refused to sleep with him.

If the employer’s unwarranted act is sexual in nature or discriminates against a particular gender, it’s likely to be ruled as unfair discrimination. If it leads to resignation or dismissal, it could be seen as automatically unfair. This could make the employee very rich indeed at the cost of the employer.

* This has frequently been the case when women don’t have to belong to a medical aid if their husbands do. The way to remedy this type of gender discrimination is to amend the rule to say that any employee may be exempted from membership if his or her spouse already belongs to a medical aid.