A Critical Analysis of Sexual Harassment in the Workplace

Abstract

The dissertation seeks to scrutinise the definition of sexual harassment in the workplace. It seeks to analyse the legislation and the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases read together with the 2005 Code, in order to establish whether the definition of sexual harassment and its application in the workplace is clear and concise. The dissertation seeks to answer some important questions: Has the definition not been stretched too far in a way that leads to challenges in its application? Have the tribunals and courts decided on what is sexual harassment in the workplace, with certainty? Have the courts over the years interpreted the definition in such that employees and employers understand exactly what sexual harassment is? This is important because, out of a definition an act is defined, employees charged, found guilty and dismissed on sexual harassment charges. The tribunals and courts also, rely on the same definition to determine disputes. Court decisions set precedents and cements the law. Certainty is key in any society as it enables members to self-monitor their behaviour. The paper also investigates the USA and Canada jurisdictions for comparison. What can we learn from these jurisdictions, when coming to handling of sexual harassment cases, or is the South African position better?