SEXUAL HARASSMENT IS NOT A FRINGE BENEFIT

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Worldwide sexual harassment is the most underreported misconduct at the workplace.

Following the outing of powerful business and political leaders such as movie mogul Harvey Weinstein, deputy British Prime Minister Damian Green, and the Melbourne mayor, Robert Doyle in Australia, millions of women have come forward through a range of social media platforms with their stories of sexual harassment.

In her new book, Lean In: Women, Work and the Will to Lead, Sheryl Sandberg, the chief operating officer of Facebook and the first woman on the its board, acknowledges what many are afraid to admit publicly: “Women face real obstacles in the professional world, including blatant and subtle sexism, discrimination and sexual harassment.”

This is true regardless of whether the women work at low levels jobs such as waitrons and security guards, in glamorous jobs such as actresses and models, or in high powered positions such as MPs and lawyers.

The online magazine, LegalWeek, on 20 December 2017 published a story about a senior partner who, with the knowledge of his legal firm, was a serial sexual harasser. However, the firm chose not to do anything about this misconduct because “of his client base”, which earned the firm an enormous amount of fees. The implication is clear – the firm would lose too much money if the sexual harasser was fired. It was much cheaper to let the complainants leave after paying them some money while securing their silence by requiring them to sign a nondisclosure agreement.

French researcher Geneviève Fraisse has argued that while women are legally seen to be equal to men in the workplace, it would appear from the vast number of sexual harassment cases that have recently been reported on social media that this is not so (“L’affaire Weinstein est une révolte historique et politique”, francetvinfo.fr, 5 décembre 2017).

The essence of her argument is that there is a clear divide between a woman’s employment competence and the accompanying patriarchal perception that her body remains available to the men surrounding her in the workplace. While she is there to work, her career does not depend on competence in her key performance areas but whether she obliges those who wield power over her by not resisting any form of sexual harassment.

Although both males and females are subject to sexual harassment at the workplace, research has shown that predominantly females suffer this indignity.

The recently held Presidents Club Char¬ity Dinner at the Dorchester Hotel in London (in December 2017) was exposed by three Financial Times journalists for what it was not. Instead of a high-profile men only charity dinner attended by 360 leading figures from British business, politics and finance, the scene was carefully set to convey the message that this was a charity dinner with sexual benefits: The “entertainment” included 130 specially hired hostesses who had to wear “uniforms” consisting of short, tight, black dresses, black high heels and a thick black belt resembling a corset.

The Financial Times reported that many of the hostesses were groped and repeatedly asked to join diners in bedrooms in the hotel, and continued to say: “By midnight, one society figure who the FT has not yet been able to contact was con¬fronting at least one hostess directly.

“‘You look far too sober,’ he told her. Fill¬ing her glass with champagne, he grabbed her by the waist, pulled her in against his stomach and declared: ‘I want you to down that glass, rip off your knickers and dance on that table.’ ”

Sexual harassment often happens in an environment where the harasser feels entitled and protected because of the power imbalance in his favour at the workplace. This is particularly apparent from the 2001 Human Rights Watch report, “Scared at School: Sexual Violence Against Girls in South African Schools”, which recorded that some male teachers said access to young females in their care was a “fringe benefit” provided for their sexual pleasure.

In a newspaper article following the report a teacher was quoted saying, ‘The department is not paying us enough money. So, this is a fringe benefit. But Std 6 is too young. Std 9 and 10 is where we play.’ ”

Victims are seldom protected and have little recourse other than approaching the courts for relief.

The employer in the matter of Christian v Colliers Properties (2005) 26 ILJ 234 (LC) discovered the expensive way that sexual harassment is not a fringe benefit. He dismissed his new employee after three days in her new job as a secretary because she refused to succumb to his sexual advances. In view of the calculating and callous manner in which she was treated, she was awarded 24 months compensation (R48 000) and her legal costs. She also referred the complaint in terms of section 50 of the Employment Equity Act EEA), and was awarded an amount of R10 000.

The facts in Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC) clearly demonstrated how the court views an employer’s failure to protect a victim. After the employer failed to take action despite the employee’s repeated complaints that she was regularly sexually harassed (and finally sexually assaulted) by her superior, she resigned.

The court found that the employer had created an intolerable work environment and that her resignation therefore constituted a constructive dismissal. She was awarded compensation equivalent to 12 months’ pay, plus R20 000 for future medical costs and psychological counselling, and R50 000 for general damages in terms of s 50(2) of the EEA, as well as her legal costs.

The Labour Courts have persistently sent a clear message – women’s bodies are not part of the employment contract and therefore sexual harassment is not a fringe benefit. Tlhotlhalemaje, J said in Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen and Others (Case no: JR 641/2016) that a “misogynistic, patriarchal and insensitive approach” shall not be tolerated.

Employers who fail to protect their employees from sexual harassment will not only lose their valuable skills, but will also be directed by the courts to pay huge sums of money in compensation – and shamed in the process.