The Employment Equity Bill fails to prescribe effective measures to deal with sexual harassment, writes PATRICIA KUMALO. Reviewing legal and informal avenues available to women, she argues that health and safety regulation could be one solution

Sexual harassment in the workplace is slowly being recognised as a form of violence which not only violates workers' human rights but also creates a hostile and unsafe environment. Yet, sexual harassment cases generally continue to be poorly handled by the courts and employers.

This in brief looks at the legislative and non-legislative processes that can be used to deal with cases of sexual harassment in the workplace. It also reports on the efforts of the Sexual Harassment Education Project (SHEP), a Johannesburg-based non-governmental organisation (NGO) to lobby for effective mechanisms to create a safe work environment and the adoption of procedures for employers to deal with sexual harassment.

Sexual harassment is broadly defined by SHEP as any unwanted behaviour or conduct of a sexual nature. This behaviour can take physical, verbal or non-verbal forms and ranges from the subtle to the gross (which includes rape).

Criminal law

The disadvantage of laying a criminal charge is the high burden of proof required; guilt needs to be proved beyond reasonable doubt. This is often very difficult considering that there are generally no witnesses to incidents of sexual harassment; cases often consist of one person's word against another's.

Civil Remedies

Sexual harassment is recognised under labour law as an unfair labour practice and can be addressed through grievance and mediation procedures. The Labour Relations Act (LRA) (Government of South Africa, 1995) covers all employees, except members of the national defence force and intelligence service employees. It now gives protection to job applicants, domestic and farm workers who were previously excluded from the Act (see Nyman, 1997). Finally, victims of sexual harassment who quit their jobs because of a `poisoned' or hostile work environment that can be shown to be created by the negligence of the employer are also covered by a constructive dismissal provision.

The Commission for Conciliation, Mediation and Arbitration (CCMA) settles most labour disputes arising from unfair labour practices. Cases of sexual harassment that cannot be settled at a company level are referred to the CCMA for mediation. Should mediation fail, cases are then referred to the Labour Court where the victim may also claim damages for pain and suffering. The participation of lawyers at the CCMA is minimal and its mediation services are provided for free. Cases are dealt with quickly - within 30 days unless a delay is caused by either the victim, employer or the mediator. The inconsistency of this Act, in terms of representation, is that while organised labour or trade unions can represent members at the CCMA, para-legals are not allowed to represent non-unionised workers. Unorganised workers are therefore more vulnerable because of the power imbalance involved in employer/employee relationships, the level of understanding of the grievance procedures and the complexity of sexual harassment. This poses a particular problem for women who tend to be unorganised and in temporary employment and who are as a result more vulnerable to sexual harassment.

The advantage of using civil law remedies includes a lower burden of proof than that required by criminal law (the grievant need only prove her case on a balance of probability). The grievant also has some control over the proceedings of her case. She is not at the mercy of police, prosecutors or criminal law bias (the duty of the victim to prove the offence was committed). In addition, the grievant can sue the harasser and the company as well. However, the legal cost entailed in suing someone is high and should the grievant lose her case, she will be liable for the legal costs of the other side as well.

The Occupational Equity Bill

A lack of definition of sexual harassment will translate into ineffectual grievance procedures.

In light of the difficulties of dealing with the matter internally - in the workplace and externally through labour and criminal law - SHEP has developed a Code of Good Practice on the Handling of Sexual Harassment Cases in conjunction with the labour movement. The Code is currently being negotiated at National Economic Development Advisory Council (NEDLAC), the tripartite forum where government, business and organised labour consult and negotiate on non-legislative issues.

The intention is to have the Code appended to either the LRA (1996) or the Equity Act as regulations. The negotiated Code of Good Practice will serve as a guideline for all employers, employees' organisations and Government. Its purpose is to provide clear grievance and disciplinary procedures to employers, as well as to eliminate or minimise the occurrence and recurrence of sexual harassment in the workplace through education and awareness-raising programmes.

Non-legislative Approaches

Although the process is currently very slow, we hope the NEDLAC process will provide encouragement for employers to adopt an internal policy on sexual harassment. BP South Africa, for example, has initiated a process of negotiating a sexual harassment policy with the unions involved. The parties have had some discussion on having trained Sexual Harassment Officers. Their limited duties are to mediate on subtle forms of sexual harassment, advise the victim or perpetrator about options available to parties in dispute in order to resolve the matter, the referral of both parties for counselling and to serve as a support system for both parties.

Occupational Health and Safety

Both the World Health Organisation (WHO) and the International Labour Organisation (ILO) stress the importance of psychological health at work in women's health, not only maternity protections, family planning and counselling (ILO, 1992). This recognises the harm of sexual harassment in serious physical and psychological effects which include severe occupational stress leading to depression and other nervous disorders. Among other consequences, stress can result in occupational accidents due to a lack of concentration.

Addressing sexual harassment with health and safety legislation was necessitated by the needs of some SHEP clients. They have no desire to take legal action against the perpetrator for fear of losing their jobs. What they need from the perpetrator is some compensation for physical and psychological damage. In situations where the victim wants to take legal action against the perpetrator, financial assistance from legal aid is not offered because the legal-aid's scope does not cover sexual harassment cases.

The scope of the current Occupational Health and Safety Act (OHSA)(Government of South Africa, 1993) and the Compensation for Injuries and Diseases Amendment (COIDA) Bill (Government of South Africa, 1997) is very narrow. OHSA is intended to provide for the health and safety of employees who work with dangerous machinery and chemicals, while COIDA sets guidelines for disability compensation caused by occupational injuries or diseases sustained. SHEP argues that the scope of these two pieces of legislation should be broadened to include sexual harassment in the workplace. International precedent exists in the Ontario Occupational Health and Safety Act which gives workers the right to refuse unsafe work (Ontario Women's Directorate, 1995). This clause allows a worker who faces serious danger to her/his health and safety to withdraw from the unsafe working area.

The Canadian Workers' Compensation Act provides compensation for physical and emotional disability or injury. Although this is a progressive Act, the process is very lengthy and very few cases have gone through the Act. The Saskatchewan Occupational Health and Safety Act (Department of Labour, 1993) requires all employers to ensure that workers are not exposed to harassment at the place of employment. To achieve a sexual harassment free environment, the Saskatchewan Health and Safety Division of the Department of Labour has prepared a harassment policy that is recommended to employers.

Should sexual harassment be recognised as an occupational injury on duty the advantage of the proposed inclusion would be that the burden of proof will be easier since it is `no fault'. This means that once it is proven that the offence has been committed, compensation would be paid.

SHEP's proposal to address sexual harassment with Health and Safety and COIDA legislation raises a number of complex questions:

• If sexual harassment is recognised as an occupational injury on duty to be compensated for, what will be the impact on avenues for redress? It appears that the right to lay a civil claim will be compromised. Yet in Canada, the rights conferred by health and safety legislation explicitly state that the provisions do not limit the ability of a victim to access rights under other legislation. This requires exploration.
• If physical injury perpetrated by either an employer or colleague happens outside company premises, whose responsibility is it?
• Under which disability category (temporary disablement, permanent disablement) should sexual harassment fall?
• How effective are the OHSA and COIDA in the small business sector and other sectors where health and safety committees do not exist and where employees are not organised, for example domestic workers and farm workers.

SHEP also intends conducting workshops to investigate what women need to ensure their safety at work. Some of the issues that need to be explored include, firstly what role can employers, employees and Government play in creating and maintaining health and safety in the workplace? Secondly, what supportive role can be played by victims' partners, colleagues and the community? Thirdly, what effective role can be played by the health and safety committees, as proposed by the health and safety legislation, to ensure that all workers work in a safe environment?

While different legislative and non-legislative approaches can be used to address sexual harassment in the workplace, more work still needs to be done to identify meaningful and effective procedures to prevent sexual harassment in the workplace. This will help to prevent sexual harassment from happening thus creating a sexual harassment free environment where every woman is treated with respect and dignity.

REFERENCES

Government of South Africa (1993) Occupational Health and Safety Amended Act, Pretoria.

Government of South Africa (1995) Labour Relations Act, Pretoria.

Government of South Africa(1997) Employment and Occupational Equity Bill, Pretoria.

Government of South Africa (1997) Compensation for Injuries and Diseases Amendment Bill, Pretoria.

International Labour Office (1992) `Combatting sexual harassment at work', Conditions of Work Digest, 11,1, Geneva: ILO.

Ontario Women's Directorate (1995) Workplace Harassment Workbook, Ontario: Women's Directorate.

Nyman R (1997) `Labour reform: addressing women's needs?', Agenda, 35.