On 30 October 2019, the Centre for Applied Legal Studies (CALS) represented a woman in suing state-owned Transnet in the Johannesburg Labour Court for failing to protect her from sexual harassment in the workplace, failing to take adequate steps to deal with the reported sexual harassment once becoming aware of it and being vicariously liable (where an employer is liable on behalf of their employee’s actions) for the incidents of sexual harassment committed by a senior staff member of the company against her.
The woman suffered relentless sexual harassment at the hands of a senior manager for six years. The sexual harassment incidents varied in degree, from receiving lewd emails and having him comment on her body in front of other staff members, to having the perpetrator book a “couple’s room” when they were travelling for work together. The perpetrator also insisted on visiting the woman’s home over a weekend to conduct a performance assessment. Although the woman reported each incident of sexual harassment to her employers, starting in 2008, a formal internal disciplinary hearing against the perpetrator was only conducted in 2015.
After the disciplinary hearing, where the alleged perpetrator was found guilty of sexual harassment and dismissed, an arbitrator for the Transnet Bargaining Council overturned the dismissal as it was seen as “too harsh”. This is despite the Labour Appeal Court stating in 2012 that “senior managers who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty”.
The perpetrator returned to work and the woman was informed by management that she would continue to report to him. When she requested a transfer to another department, this was refused. Both the perpetrator and the woman continue to work at Transnet. Yet, because of reporting the continuous sexual harassment, the woman has faced years of discrimination and humiliation by the parastatal.
Sexual harassment in the workplace is rife in South Africa. This is supported by a study by market research agency Columinate, which found that 30% of women in South Africa admit to being sexually harassed at work. Unfortunately, the percentage of women experiencing sexual harassment in the workplace is likely to be higher than this as Columinate also found that only 16% reported the sexual harassment to their human resources department. It is also difficult to find reliable statistics around sexual harassment as it is not considered a criminal act and thus would not be included in the South African Police Service’s annual crime statistics.
With such a high occurrence of sexual harassment in the workplace, it is not surprising that our courts have acknowledged a legal obligation that all employers have to ensure their workplaces are safe and discrimination free. Employers who fail to take steps to eradicate sexual harassment can be held liable for the harassment. In the case Liberty Group Limited v Margaret Masango, the Labour Appeal Court held that employers have an obligation to take immediate and necessary steps to eliminate sexual harassment once it has been reported to them.
Failure to take these steps to eliminate sexual harassment once it has been reported can result in the employer being liable for the sexual harassment committed by one of their employees. This case implicitly places a legal obligation on employers to actively act against sexual harassment in the workplace. When employers fail to do so, they are not only civilly liable for this failure but also ultimately form part of a culture of sexual discrimination that allows such harassment to flourish. If we look at employers enabling sexual harassment through a culture of sexual discrimination and impunity, then we need to start considering workplaces as partly factually guilty of sexual harassment.
Actions and accountability
When employers condone sexual harassment in the workplace, even implicitly, they become perpetrators, too. This is supported in a study by Jennifer Berdahl in 2011, which found that perceived risk to women for laying complaints against perpetrators, sanctions against offenders and the perception that the complaint would be taken seriously were all factors in whether or not sexual harassment would occur in the workplace and if an individual would report being harassed.
What can be taken from this study is that workplaces can in fact create an environment that condones and protects sexual harassers. When workplaces adopt a pro-perpetrator approach to sexual harassment by failing to take disciplinary action against a perpetrator, asking the complainant to withdraw her report or giving lenient punishment for perpetrators found guilty of sexual harassment, they should not only be seen as being “vicariously liable” but also factually liable.
Until such time as employers create safe workplaces for their employees by taking swift approaches to sexual harassment complaints, individuals will be forced to persist in holding employers accountable through our courts.