Trigger warning: Sexual assault
Sexual harassment has become a big talking point in the last few months. We've all been following the Harvey Weinstein scandal as various other famous men have been accused of sexual harassment.
In fact, here’s a list from TIME detailing 121 famous men who have been accused of sexual misconduct since news broke and led to the #MeToo movement.
Recently, according to OkayAfrica.com, writer, Chimamanda Adichie Ngozi shared that she "was sexually assaulted at the age of 17 in Lagos by 'a big man in the media,' while trying to get support for the publication of her first book." She says that the social conditioning that women go through make them reluctant to talk about these experiences.
Closer to home, our own TV and movie industry has been rocked by similar allegations where a few top figures have been accused of rape and sexual assault.
These incidents and recent claims keep bringing front of mind, that we need to know our rights at work and what we can do if we, our colleagues/co-workers or loved ones are affected.
We spoke to three people who have all been sexually harassed in their workplaces - they remind us that these things doesn’t just happen on film sets or in hotel rooms:
“Well I was young, and it was my first job. Our boss sexually harassed me and the other girl working there. Comments would be from the underwear we were wearing to asking us very rude questions and talking about [masturbating] and people he [slept with], etc. If we walked in the office he'd even say ‘nice [breasts]’.
“We were very afraid of him because when he got angry he would swear at you. He was the boss, there was no HR. He ran a small design and photography studio. My parents were aware [of the harassment], as just before I quit I put him on speaker phone while he was swearing at me. He had no respect whatsoever for women. I was uninformed about what I could legally do. He made promises of increasing our salaries etc. and there was another male photographer in the office who just laughed with him. I know it was inappropriate, but he made it all seem like a joke, like he was our friend. He came on to us quite strong, however he never made a move, but always spoke to us inappropriately about sex and sexual experiences and asked us what we liked and when last we [had sex], etc.
“We didn’t do anything, we were afraid of him. If I couldn’t figure something out, like when I had to do an automated CD for an American company (which I have never done before), he would tell me not to come in the next day if I didn’t figure it out. He threatened our jobs like that the whole time. He even had a girlfriend (cheated on his ex-wife with her and he has two daughters of his own). He'd smack her on her [bottom] and make remarks about her breasts in front of us. He was a narcissist, and everyone was too afraid of him.”
“I worked as a trade union organiser, and part of my job always included one-on-one consultations with members. In this particular case, there was a retrenchment at the company, and the individual requested to see me afterwards. I thought nothing of it and followed him to his office.
“The minute I was inside, he locked the door behind me and his demeanour became threatening. He kept telling me not to speak so loudly. I was frozen. He started out by asking work-related questions and told tall tales of his management’s dishonest dealings, and then swung the conversation around. He demanded my cell phone number, and I realised I wasn’t going to get out unless I provide it, so I placated him. He unlocked the door and sped out. It only struck me about 30 minutes later what had happened. He didn’t touch me, but I felt so threatened. He was much larger than me, and I would not have been able to get out, if anything happened.
“I sat down, wrote the whole incident up and sent it to my bosses. I also sent him a message saying I felt he was way out of line, and that he should never contact me again. He responded by phoning my office nonstop for days, despite my refusal to speak to him, and I barred my entire team from speaking to him.
“They set up a meeting with him about a week later (without my being present, which was fine with me). He was quite taken aback and obviously had no idea that his actions were wrong. I didn’t pursue anything further, but this was sort of the last nail in the coffin of me looking for another job.
“There were no repercussions for him as far as I know. I wouldn’t like to say anything to him, I’m happy with never seeing him again.
“I am definitely less trusting of people and I feel threatened pretty quickly. I don’t like being in an enclosed space with people. I’m not sure if I’m just more aware of it now, or if it’s because of the incident.
“My biggest struggle was the fact that I was trained to know what to do, and I didn’t. I didn’t confront him at all, I was so meek and mild during the incident. I felt like I should have demanded to be let out!”
“This has happened to me a couple of times.
“First time was an elderly lady who patted my backside while I helped her with copies. I felt numb after. Guys rationalise [things] way too easily. So I let it go.
“The second time was a middle-aged woman who also fondled my backside and gave it a pat as I leaned over to get a book. That one set me off, she reeked of alcohol. I buried myself in books and distractions. I couldn't rationalise that at all and the anger seeped out, infecting everything.
“Third time was a guy who would not let me have any breathing space. He grabbed my waist 'to move me out of the way', before grabbing my [backside]. The visible erection I ignored. I helped him and he left.
“It has been 15, 12 and 10 years respectively since each incident, I need to constantly check my proximity to other people to feel safe. I didn't report it. It was expected that guys could deal, and I dealt as best I could.”
What the law says
In South Africa, The Employment Equity Act, 55 of 1998, tells you what your rights are as an employee and is the most important piece of legislation when it comes to protecting yourself from any sort of discrimination or harassment in the workplace. In section 6 it explains that no person may unfairly discriminate against another and that "harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination". Such grounds are listed grounds such as gender, or on any other arbitrary ground.
Anyuschka Nett, an associate attorney at Luitingh Attorneys further explains the rights of the employee in regards to sexual harassment: “Sexual harassment in a workplace is prohibited in terms of South African law and equates to discrimination in terms of the Employment Equity Act.”
Nett goes on to say that employers have an obligation to create a working environment in which the dignity of all its employees is respected. So the Code of Good Practice on the handling of sexual harassment cases should be utilised as a guideline by both employers and employees when dealing with instances of sexual harassment.
In terms of the code, sexual harassment is defined as “unwanted conduct of a sexual nature” and the conduct becomes sexual harassment where (a) the behaviour is continual (b) the recipient has expressed his/her views at the behaviour being inappropriate; (c) in instances where the perpetrator should inherently know that their behaviour is unacceptable.
“The code goes further to classify sexual harassment so broadly as to include ‘unwelcome physical, verbal and non-verbal conduct’. A few limited examples of these instances would be any unwanted physical contact of a sexual nature or possessing a sexual undertone, sexual innuendos and jokes, suggestive and sexual comments about a particular co-worker, the sharing of inappropriate sexually graphic pictures, “ says Nett.
Nett advises that if you believe that you have been a victim of sexual harassment and are unsure of what your company’s policies are in this regard you should immediately raise your concerns with management or alternatively your HR manager. Your employer is duty-bound to act in a proactive manner and to deal with the allegations of sexual harassment which you bring to light. In terms of the Employment Equity Act an employer who fails to take the necessary steps to investigate and eliminate the sexual harassment complained of may also be held vicariously liable for the acts of the perpetrating employee.
“Lastly, if at any time you are unsure of your rights, or need guidance on what steps you should be taking to assert your rights, consult your attorney,” says Nett.
According to a press release from Bradley Workman-Davies, the director at Werksmans Attorneys, “the well-established forums available to employees of resolving labour disputes are also available in the case of sexual harassment, in order to provide employees with an affordable, effective and easily accessible mechanism to deal with these issues.”
You’re within your rights as an employee to take your case to the CCMA or the Labour Courts if you feel not enough was done by your employer to resolve the issue. If the CCMA provides an arbitration award, it can order compensation of up to 12 months remuneration, and damages of up to R205 433.30. The Labour Court can similarly order this level of compensation, but has the discretion to award unlimited damages.
“The CCMA and Labour Courts have shown themselves to be unsympathetic to employers who allow sexual harassment of their employees, and have consistently found that in cases of sexual harassment leading to resignation by the victim, an unfair dismissal (constructive dismissal) has taken place. As such, employers should be aware that they have a positive obligation to ensure that their employers are not victims of this type of conduct,” says Workman-Davies.
If you or someone you know has been sexually harassed at work, then please approach your management or someone in HR, or go to an attorney who specialises in sexual harassment like Luitingh Attorneys.
*Names have been changed to protect identities
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