Code of Good Practice for employers and employees addressing workplace sexual harassment

Download a PDF booklet on the Code of Good Practice for employers and employees addressing workplace sexual harassment

Up for discussion:

■ Procedures for addressing workplace sexual harassment

■ Opportunities for mediation within the code on sexual harassment in the workplace

■ Restorative justice and workplace harmony

■ Addressing power imbalances

■ Employer responsibilities

■ Documents and policies to combat workplace sexual harassment

■ FAQ

Code of Good Practice for employers and employees addressing workplace sexual harassment

 

This document is based on the Notice from the National Economic Development and Labour Council of South Africa, issued in 1998, concerning the handling of sexual harassment cases. It lays out a Code of Good Practice for employers and employees. The Code defines what constitutes sexual harassment, including physical, verbal, and non-verbal conduct, as well as quid pro quo harassment and sexual favouritism. It establishes guidelines for creating a working environment where sexual harassment is unacceptable and offers a step-by-step procedure for resolving complaints. The Code encourages employers to develop policies, procedures, and training programs to prevent and address sexual harassment in the workplace.

 

Procedures for addressing workplace sexual harassment

The Code of Good Practice outlines a comprehensive set of procedures for addressing sexual harassment in the workplace, emphasising a multi-faceted approach that includes prevention, informal and formal resolution, and disciplinary action.

 

■ Prevention

• Policy statements: Employers should issue clear policy statements that:
  • Emphasise the right of all individuals to be treated with dignity.
  • Declare sexual harassment as unacceptable and prohibited.
  • Outline the right to raise grievances without fear of reprisal.
• Communication and training:
  • Policy statements should be communicated effectively to all employees.
  • Sexual harassment should be included in orientation, education, and training programs for employees, managers, and union representatives.
  • Specialised training should be provided for CCMA commissioners to handle sexual harassment cases effectively.

 

■ Addressing sexual harassment

• Informal procedure:
  • Victims can choose to address the issue informally by directly communicating with the harasser, explaining that the behaviour is unwelcome and offensive.
  • This approach is suitable for less severe incidents or as a first step.
• Formal procedure:
  • When informal resolution is ineffective or inappropriate (e.g., severe cases like sexual assault), victims can initiate a formal grievance procedure.
  • The procedure should be clearly defined, specify the designated recipient for grievances, and ensure timely resolution.
• Investigation and disciplinary action:
  • Investigations should be conducted carefully to protect the aggrieved person from disadvantage and avoid prejudicing other parties if the grievance is found to be unwarranted.
  • Disciplinary actions for sexual harassment should be clearly stated in the policy, ranging from warnings to dismissal for serious or repeated offenses.
  • Victimisation or retaliation against an employee who reports sexual harassment is also a disciplinary offense.

 

Additional support and considerations

• Advice and assistance:
  • Employers should designate a confidential resource person outside of line management for victims to seek advice and support.
  • This person should be appropriately skilled, trained, and resourced to provide guidance, counselling, and relevant labour relations support.
• Criminal and civil charges:
  • Victims retain the right to pursue criminal or civil charges against the perpetrator independently of the workplace procedures.
• Dispute resolution:
  • If internal procedures fail to resolve the issue, either party can refer the matter to the CCMA (Commission for Conciliation, Mediation, and Arbitration) for conciliation and, if necessary, to the Labour Court for adjudication.
• Confidentiality:
  • Confidentially must be maintained throughout the process, protecting the identities of the parties involved.
• Additional sick leave:
  • Employers should consider granting additional sick leave for trauma counselling in severe cases where the employee’s existing sick leave has been exhausted.

 

Role of mediation

Mediation can play a valuable role in addressing sexual harassment within the workplace framework. It can facilitate informal resolution, promote restorative justice, address power imbalances, ensure confidentiality, and prevent retaliation.

 

Opportunities for mediation within the code on sexual harassment in the workplace

The Code of Good Practice on the Handling of Sexual Harassment Cases, do not explicitly mention mediation, yet a detailed analysis reveals several areas where mediation could be effectively integrated to resolve potential disputes and enhance adherence to the Code’s principles.

 

Informal resolution

The Code advocates for informal resolution as the initial step in addressing sexual harassment complaints. Mediation can significantly contribute to this process by providing a structured and facilitated environment for communication between the parties involved.

• Neutral facilitation: A skilled mediator can help the victim and the alleged harasser communicate effectively, ensuring that both parties have a chance to express their perspectives and concerns in a safe and respectful setting.
• Clarifying misunderstandings: Mediation can be particularly useful in situations where the alleged harassment stems from miscommunication or differing perceptions of acceptable behaviour.
• Reaching mutually acceptable solutions: With the assistance of a mediator, the parties can explore potential solutions, such as apologies, behavioural adjustments, or workplace modifications, leading to a mutually agreeable resolution.

 

Restorative justice and workplace harmony

The Code emphasises the importance of creating a workplace where dignity and respect are paramount. Mediation aligns with this objective by offering a restorative approach that goes beyond traditional disciplinary measures.

• Acknowledging harm and taking responsibility: Mediation provides a platform for the alleged harasser to acknowledge the harm their actions have caused, take responsibility, and offer a sincere apology. This can be a crucial step in repairing relationships and fostering a more positive work environment.
• Finding common ground: The process can help the parties identify shared interests and goals, leading to solutions that address the needs of both the victim and the alleged harasser while contributing to a more harmonious and respectful workplace.

 

 Addressing power imbalances

Sexual harassment often arises in situations where there is a power imbalance between the parties. The Code acknowledges this by outlining procedures to protect the aggrieved party from disadvantage during investigations and disciplinary proceedings. Mediation can further address this challenge by:

• Creating a level playing field: A skilled mediator can manage power dynamics, ensuring that both parties have an equal voice and opportunity to participate in the process.
• Empowering the victim: Mediation empowers the victim to articulate their experiences, needs, and desired outcomes, fostering a sense of agency and control in a situation where they may feel vulnerable.

 

Confidentiality and sensitivity

The Code stresses the need for confidentiality in handling sexual harassment cases. Mediation naturally aligns with this principle, offering a private and discreet process.

• Protecting privacy: Mediation allows the parties to address the issue outside of formal procedures, minimising potential reputational damage and maintaining a greater degree of privacy.
• Sensitive handling: Mediation provides a space for open and honest dialogue, encouraging a more nuanced and sensitive approach to understanding the complexities of the situation.

 

Preventing retaliation

The Code explicitly prohibits retaliation against employees who report sexual harassment. Mediation can contribute to preventing such retaliation by:

• Facilitating understanding: The mediation process encourages dialogue and empathy between the parties, potentially reducing animosity and the likelihood of future conflicts.
• Developing collaborative solutions: By working together to develop mutually agreeable resolutions, mediation can help to rebuild trust and establish a more positive working relationship.

 

Employer responsibilities: ensuring a safe and respectful workplace

Employers have a fundamental duty to cultivate a work environment where all employees feel safe and respected. This goes beyond just having a policy against sexual harassment; it means actively creating a culture where such behaviour is unacceptable.

To accomplish this, employers must take concrete steps:

• Establish and communicate clear policies: The employer should have a detailed policy that explicitly states the company’s stance on sexual harassment. This policy should:
  • Affirm the right of all employees and those associated with the business to be treated with dignity.
  • Clearly prohibit and condemn any form of sexual harassment within the workplace.
  • Guarantee the right of victims to file complaints and outline a clear procedure for doing so.
  • Specify the disciplinary actions that will be taken against those found guilty of harassment, including warnings and the possibility of dismissal for serious or repeated offenses.
  • Emphasise that any retaliation against an employee who reports sexual harassment is strictly forbidden and will lead to disciplinary measures.
• Ensure wide dissemination of the policy: The policy should be readily accessible to all employees, for instance:
  • Display it prominently in common areas of the workplace.
  • Include it in employee handbooks.
  • Make it a key part of orientation and training sessions.
• Provide comprehensive training and education: It’s crucial for employers to educate their workforce about sexual harassment. This includes:
  • Orientation programs for new employees to set the tone from the start.
  • Regular training sessions for all employees to refresh their understanding and keep the policy top of mind.
  • Specialised training for managers and supervisors on recognising, preventing, and handling sexual harassment complaints effectively.

 

Employer responsibilities: responding to sexual harassment complaints

When an employee reports sexual harassment, the employer has a responsibility to act promptly and appropriately.

• Designate a confidential resource person: A designated person outside of the regular management structure should be available for employees to confide in about potential harassment issues. This individual should be:
  • Trained to provide advice and support to victims.
  • Knowledgeable about the company’s policies and procedures.
  • Skilled in counselling and support.
  • Equipped with an understanding of labour relations.
• Clearly explain options to the employee: The employee should be informed of the different ways they can address the issue, including informal resolution and the formal grievance process.
• Facilitate informal resolution when appropriate: If the employee chooses the informal route, the employer can support them in communicating with the alleged harasser. The goal here is for the employee to express their discomfort and request a stop to the unwanted behaviour.
• Establish a formal grievance procedure: If the informal approach fails or the situation is serious, a formal procedure should be available. This should be a structured process with clear timelines and steps for escalating unresolved issues.
• Conduct a thorough and impartial investigation: When a formal complaint is lodged, a prompt and impartial investigation is necessary. This investigation must:
  • Protect the person reporting the harassment from any form of disadvantage.
  • Ensure fairness to all parties involved, protecting those accused if the allegations prove to be unfounded.
• Take appropriate disciplinary action: If the investigation confirms the harassment, the employer must take disciplinary action against the perpetrator. The severity of the offense will determine the consequences, which can range from warnings to termination of employment.

 

Additional employer responsibilities

• Maintain confidentiality: The employer has a duty to protect the privacy of all involved parties throughout the entire process. Confidentiality is paramount in these situations.
• Provide additional support: The employer should consider granting additional sick leave for employees who have experienced sexual harassment and require trauma counselling, even if they have exhausted their regular sick leave.
• Address harassment from non-employees: While an employer may not have the direct authority to discipline non-employees, they still have a responsibility to address harassment from individuals like clients or contractors if it occurs in the workplace. This might include barring the harasser from the premises or taking other appropriate steps to protect the employee.

 

Documents and policies to combat workplace sexual harassment

Here are some key documents that employers could and should draft:

• Formal sexual harassment policy: This foundational document should articulate the organisation’s unwavering commitment to a workplace free from sexual harassment. The policy should:
  • Define sexual harassment: Provide a clear and detailed definition of sexual harassment, encompassing various forms such as physical, verbal, non-verbal, quid pro quo, and sexual favouritism.
  • Outline prohibited conduct: Specify examples of unacceptable behaviour to provide clarity for all employees.
  • State zero tolerance: Emphasise that the organisation has a zero-tolerance policy towards any form of sexual harassment.
  • Protect against retaliation: Explicitly prohibit any form of retaliation against individuals who report sexual harassment or participate in investigations.
• Complaint procedure: This document should outline the step-by-step process for employees to report sexual harassment. It should:
  • Explain informal and formal options: Describe both informal resolution pathways, such as speaking directly with the harasser or seeking mediation, and formal grievance procedures.
  • Designate reporting avenues: Clearly identify individuals or departments responsible for receiving complaints, ensuring multiple avenues for reporting.
  • Establish timeframes: Set reasonable timeframes for each stage of the complaint process to ensure prompt and efficient resolution.
  • Describe investigation process: Outline the steps involved in investigating complaints, emphasising fairness, thoroughness, and confidentiality.
  • Detail potential outcomes: Explain the range of disciplinary actions that may be taken against perpetrators if harassment is substantiated, including warnings, suspensions, and termination.
• Training materials: Developing comprehensive training materials is essential to educate employees about sexual harassment and the organisation’s policies and procedures. These materials could include:
  • Orientation handouts: Provide new employees with an overview of the sexual harassment policy, reporting procedures, and available resources during their onboarding process.
  • Interactive training modules: Use online or in-person training modules to engage employees in scenarios and real-life examples, promoting awareness and understanding.
  • Supervisor training guides: Equip supervisors and managers with specialised training on recognising, preventing, and addressing sexual harassment, including their legal responsibilities.
• Resource guide: Create a resource guide that provides employees with essential information and support contacts related to sexual harassment. This guide could include:
  • Contact information: List the names, titles, and contact details for designated individuals or departments responsible for handling complaints.
  • External resources: Provide contact information for external organisations that offer support and advocacy services to victims of sexual harassment, such as legal aid clinics or counselling centres.
  • Rights and responsibilities: Clearly explain the rights and responsibilities of both employees and the organisation in relation to sexual harassment.

 

The role of mediation in addressing sexual harassment

The Code of Good Practice on the Handling of Sexual Harassment Cases highlight the importance of providing options for resolving sexual harassment complaints. While the Code doesn’t explicitly mention “mediation,” it emphasises the value of informal procedures as a first step in addressing these sensitive issues. Mediation aligns well with this principle and can be a valuable tool for achieving compliance with the Code’s objectives.

Here’s how mediation can assist:

• Early resolution: Mediation offers a way to address concerns before they escalate into formal grievances. The informal nature of mediation allows for a more timely and less adversarial process, potentially resolving the issue quickly and preventing further harm.
• Open communication: Mediation provides a structured and safe space for the parties involved to communicate directly with the help of a neutral third party. This can facilitate understanding, empathy, and a collaborative approach to finding solutions.
• Confidentiality: Consistent with the Code’s emphasis on confidentiality, mediation proceedings are typically confidential. This can encourage open dialogue and help protect the privacy of all parties involved.
• Creative solutions: Mediation encourages parties to think creatively and develop mutually agreeable solutions that may not be available through formal procedures. This flexibility can lead to more satisfying outcomes that address the specific needs and concerns of both the person who experienced the harassment and the respondent.

 

It’s important to note that mediation is not suitable for all sexual harassment cases. As the Code points out, severe cases, such as sexual assault or quid pro quo harassment, may require a more formal approach involving investigation and disciplinary action.

 

 

 Sexual harassment in the workplace FAQ

What is sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature. It differs from welcome and mutual behaviour. Sexual attention becomes harassment if:

• The behaviour persists, even if it’s a single incident.
• The recipient has clearly stated that the behaviour is offensive.
• The perpetrator should have known that the behaviour is unacceptable.

 

What are some examples of sexual harassment?

Sexual harassment can be physical, verbal, or non-verbal, including:

• Physical: Unwanted physical contact, from touching to sexual assault and rape. This includes strip searches by or in the presence of the opposite sex.
• Verbal: Unwelcome innuendoes, suggestions, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body, inappropriate inquiries about a person’s sex life, and unwelcome whistling.
• Non-verbal: Unwelcome gestures, indecent exposure, and displaying sexually explicit pictures and objects.

 

What is quid pro quo harassment?

Quid pro quo harassment happens when someone in authority (owner, employer, supervisor, manager, or co-employee) uses their position to influence employment decisions (promotion, training, discipline, dismissal, salary, benefits) in exchange for sexual favours.

 

What is sexual favouritism?

Sexual favouritism occurs when a person in authority rewards only those who respond to their sexual advances. Employees who deserve promotions, good ratings, or salary increases are denied them because they don’t submit to sexual advances.

 

What should I do if I experience sexual harassment at work?

You have two options:

• Informal resolution: Explain to the harasser that their behaviour is unwelcome, offensive, and interferes with your work.
• Formal procedure: If the informal approach fails, the harassment is severe (sexual assault, rape, strip search, quid pro quo), or the behaviour continues, you can lodge a formal grievance with your employer.

 

What are my rights if I report sexual harassment?

This code guarantees you:

• The right to be treated with dignity and respect.
• The right to raise a grievance about sexual harassment without fear of reprisal.
• Confidentiality during the investigation and disciplinary process.
• Protection against victimisation and retaliation.

 

Can I pursue legal action against the harasser?

Yes, you have the right to press separate criminal and/or civil charges against the alleged perpetrator. Your legal rights are not limited by this code.

 

What resources are available to help me deal with sexual harassment?

Employers should designate a person outside of line management whom you can approach for confidential advice, support, and guidance. This could be someone within the company, a trade union representative, or an outside professional.

Compiled by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC, NABFAM), a legal practitioner and accredited mediator.