Sexual harassment in the workplace is an issue the business community has convinced itself occurs very rarely. This should be the case, as we have sound legislation that deals with discrimination in the workplace and the wider community, as well as a constitution that protects the rights of all people. In reality, it is not.

Section 3 of The Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace defines sexual harassment as follows:

Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. (2) Sexual attention becomes sexual harassment if: (a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or(b) The recipient has made it clear that the behaviour is considered offensive; and/or(c) The perpetrator should have known that the behaviour is regarded as unacceptable.

This is problematic, firstly because it seems to only really accept the behaviour as constituting misconduct if it is recurrent, except in circumstances that are not elaborated on and secondly because it requires the victim to make it clear that the behaviour offends. If harassment is truly considered abhorrent behaviour, should there be an obligation on the victim to voice disapproval? Lastly, if the perpetrator does not know the behaviour is unacceptable, I’m not convinced that individual should be roaming around in a professional environment.

Sexual harassment is in most cases perpetrated by a person in a position of power towards a person with a lesser degree of power. This should place a duty on the employer to pro-actively deal with this type of harassment, instead of the reactive and quite lacklustre approach that we very often see.

It may be happening in your organisation and it would be wise to get your proverbial head out of the sand. Financial implications aside, the reputational risk is simply too great – If you are unsure whether your business is protected please contact us for assistance.