Drawing the line between permissible and impermissible behaviour in sexual harassment cases

Abstract

Sections 9, 10 and 23 of the Constitution protects the right to equality, human dignity and fair labour practices. As a result of these constitutional rights, the Employment Equity Act 55 of 1998 (EEA) was birthed in order to promote equality and to eliminate all forms of unfair discrimination in the workplace. Further, the EEA states that the harassment of an employee is a form of unfair discrimination. A topic that has become ever so prevalent in todays’ society is that of sexual harassment. With the “#MeToo” movement that is currently circulating social media, it is crucial that employers are able to properly cater for victim’s grievances and complaints. Unfortunately, there is no sound definition for sexual harassment in our legislation and often the line between permissible and impermissible behaviour in the workplace is very difficult to draw. Employers are only left with the 1998 and 2005 Codes of Good Practice on the Handling of Sexual Harassment Cases, of which Codes appear to be rather confusing when read together. It will be argued that a lack of a proper definition on sexual harassment will have a negative impact on the management of sexual harassment cases in the workplace. This will in turn place employers at risk of being liable for sexual harassment in terms of the EEA. In this dissertation, I will explore the pitfalls with our current law governing sexual harassment and will propose a solution going forward on how to tackle this heinous plague in the workplace.