Following five days of mourning for those we have lost to Covid-19 and to gender-based violence, and in these 16 days of activism against violence against women and children, we are well reminded of the many forms in which gender-based violence manifests. We look back at a 2019 article on workplace harassment, written by UCT Law's Professor Rochelle le Roux.

Decoding the enemy: Developing a language for sexual harassment in the workplace

2020 US presidential hopeful, Joe Biden, recently apologised for his hostile chairing in 1991 of a committee that heard allegations of sexual harassment against a Supreme Court nominee. Biden now claims to understand the secondary harassment that the complainant experienced through his conduct.

Alas, sexual harassment pervades all spheres of society and if perpetrated in the workplace, the consequences can be far-reaching for the victim, and, if reported, also for the perpetrator and even the employer.

Just ask the dismissed employee (S) in the Labour Appeal Court (LAC) matter, Campbell Scientific Africa v S. S claimed that his inquiry after dinner whether a colleague ‘wanted a lover’ that night was simply modern sexual banter and socially acceptable conduct. She did not agree, nor did his employer and neither did the LAC. But the Labour Court saw it differently and ordered S’ reinstatement, hence the appeal to the LAC. This lack of unanimity is in the nature of jurisprudence and by itself unremarkable. However, more significantly, this saga revealed that, as recently as 2018 there was in South Africa still no universal legal definition – a gold standard, so to speak – of sexual harassment in the workplace.

In South Africa, labour legislation does not address sexual harassment by name. The Employment Equity Act 1998 merely provides that harassment of an employee for a reason such as gender, sex and sexual orientation is a form of unfair discrimination. However, a code on on the handling of workplace sexual harassment was issued in 1998 (1998 Code). But in 2005, another code (2005 Code) was adopted, apparently with the intention of replacing the 1998 Code. Inexplicably, the latter was not withdrawn for another thirteen years and two codes were thus relevant whenever workplace sexual harassment came under scrutiny; an unviable task for any decision-maker as there are nuanced differences, both in terms of procedure and substance. Fortunately, their co-existence ended when the 1998 Code was repealed in December 2018. Remarkably, the reason given for the repeal - deeply hidden in a Gazette- was the fact that it was replaced by the 2005 Code.

Sexual harassment in the workplace is a multifarious monster and cannot be foiled by words alone. Hopefully, the existence of a single code will promote a more universal understanding of workplace sexual harassment and provide a basis for the development of an influential body of law. But the withdrawal of the 1998 Code might not be enough. Although the terms of the 2005 Code are deliberately malleable to accommodate diverse forms of conduct, it is perhaps time to evaluate whether it has in fact withstood the test of time, or whether it can be improved upon or even replaced by dedicated legislation. Not only does technology provide new clandestine platforms for perpetrators, but with the improved understanding of the psychology of patriarchy (and other socially sanctioned regimes of baseless power), it is now easier to identify the hitherto surreptitious and nameless forms of harassment, often sexual in nature, based on these unfounded assumptions of supremacy. Lawmakers will therefore do well to stress test the 2005 Code to ensure that it is still appropriate for addressing ‘upskirting’, coercive control, voyeurism and other, not necessarily new, but now better understood, forms of (sexual) harassment, for which the workplace is fertile ground. In this regard they might also want to look at the work that a sub-committee of the International Labour Organisation is undertaking with a view to adopting a dedicated instrument on violence and harassment in the world of work.

The question here is not which code is better. The 2005 Code is probably better, but the confusion created by their co-existence is a far greater evil. Of course, having certainty about the meaning of sexual harassment does not guarantee that those who behave like S will always be dismissed, but removing the confusion about which code to apply makes consistency feasible.

My co-authors and I dedicated our 2010 publication, Harassment in the Workplace, to the slave woman Eva, the victim of the earliest recorded South African example of sexual harassment that we could trace. In 1826 Eva successfully claimed her freedom after her owner reneged on a promise that she would be freed after having sexual intercourse with him. Of course, then it was not called sexual harassment; in fact, it was not until the early 1970s that the term sexual harassment emerged for such deeds. Joe Biden could therefore perhaps be forgiven for not at the time understanding the complexities of the investigation that he was chairing in 1991. But we no longer lack the language for this terrible, albeit both complex and silent, condition of employment and owe it to the victims, mostly women, to at least make sure that we call it out for what it is and decode it appropriately and effectively.

Prof Rochelle le Roux, Department of Commercial Law, Faculty of Law, University of Cape Town

The full text of this abbreviated article is available for download.

Le Roux co-authored, with Alan Rycroft and Thandi Orleyn, Harassment in the Workplace (2010) and is the author of Retrenchment Law in South Africa (2016).