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Are sexual advances unfair?

Ivan Israelstam

After unfair dismissal and unfair labour practices, the third category of unfair conduct by an employer is unfair discrimination. Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds, including race, age, disability, sex and many others. Unfair discrimination can take many forms. For example, if an employee is sexually harassed, this is a form of unfair discrimination based on gender. But what if the employee denies that his/her advances were sexual in nature? In this case, can the employer be made liable for unfair sexual discrimination?

When is it 'sexual harassment'?

If the employee merely invited a co-worker to lunch, this would probably not be seen as sexual harassment. However, if the first employee persisted despite repeated refusals by the second employee, this could be seen as unfair discrimination and sexual harassment unless the first employee can prove the lunch invitations were platonic in nature. The circumstances of each case can fall into grey areas of law, such as in a case where the aggrieved employee is a woman and the alleged harasser, a male, claims to be homosexual, so trying to escape liability.

But conduct that does not fall into a grey area of law includes:

  • Indecent assault,
  • Kissing,
  • Sexual comments, and
  • Inappropriate touching.

In Grobler vs Naspers Magazine Printers 19 March 2004 reported in The Star on 20 March 2004, the Cape High Court was asked to award R11.8 million damages to a Ms Grobler.

In this case:

  • It was alleged that Ms Grobler had been sexually harassed by a fellow employee over a period of seven months.
  • In one incident, the harasser allegedly attempted to put Ms Grobler at gunpoint to force her to have sexual intercourse with him.
  • As a result, she suffered severe and debilitating post-traumatic stress disorder.
  • According to the report, it was only after Ms Grobler laid a formal complaint through an independent labour consultant that the alleged perpetrator was fired.
  • The court found that the employer had failed in its duty to protect its employee from sexual harassment.
  • The court ordered the employer to pay Ms Grobler R200 000 in general damages and was willing to consider further claims in future loss of income claims amounting to over R10 million.

Devise an anti-sexual harassment strategy for your organisation

This case makes it clear that - in the context of unfair discrimination - 'unfair' means that the employer has failed to protect the employee from sexual harassment. The onerous duty this legislation places on the employer means that a comprehensive anti-sexual harassment strategy needs to be devised by every employer.

Even if you are a small employer, have a happy 'family' work environment or have never received any sexual harassment complaints, you could be the next employer in court facing a sexual harassment suit. If you are not proactive in this area, you won't be able to prevent your staff from sending offensive e-mails, downloading materials from questionable sites, telling dirty jokes, making wolf whistles and opening you up to crippling court orders and a muddied reputation.