In a matter of days, or more precisely come June 30, 2024, an important provision of the Sexual Harassment (Protection and Prevention) Act, 2021 will come into effect. That provision is set out in section 4(1)(a) and (b) of the Act, which mandates every employer to develop a sexual harassment policy for the workplace and to ensure that the policy is brought to the attention of every member of staff.
There is a $1-million fine for employers who are deemed non-compliant with the provisions of not only sections 4(1)(a) and (b), but section 3 of the Act. However, that penalty only comes into effect where the employer, without good reason, and in good time, fails to comply with the directive of an authorised officer to either issue a policy or to show what reasonable efforts have been taken to create an environment in which every worker feels safe from sexual harassment.
What is important in understanding the Act is its fundamental purpose, too often limited to the imposition of penalties for sexual harassment offences, or for the failure of employers to observe its provisions. The Act is much more than that, and the sexual harassment policy should reinforce what are its quintessential objectives. Those objectives are foremost to prevent incidents of sexual harassment from occurring and not necessarily to cure it. This is embodied in the very title of the Act: The Sexual Harassment (Protection and Prevention) Act, making provisions for a focus on how to prevent its occurrence. This is what sections 3 and 4 set out to do. Section 3 places a duty on the employer to “make every reasonable effort to ensure that workers employed by the employer are not sexually harassed in the course of their employment”. This means to satisfy the letter and spirit of the Act that the initiatives adopted by the organisation do in fact create an environment in which workers feel safe and secure and will not be subject to any kind of sexual harassment.
The preventative side therefore exposes the real intent of the Act, which is about promoting human rights in conditions of dignity, equality and respect. The very thrust of an enhanced workplace culture — which must be the pursuit of every organisation — should be deliberate in ensuring that workers are unfailingly kind and considerate towards each other. This, according to (International Labour Organization) ILO research, is what underpins an important element of the decent work agenda.
Studies show that more than 80% of all cases of sexual harassment are of males in supervisory and managerial positions harassing female members of staff. In that regard, men who possess a proclivity to sexually harass is said to cognitively link social dominance and sexuality. This exposes the cultural norms which have shaped over time men’s view towards women, but equally importantly, reinforces perceptions of dominance and superiority in organisational hierarchy. This is why the studies also bear out the fact that more than 80% of all cases of sexual harassment across and between genders occur in the dynamics of power relations at the workplace.
To prevent sexual harassment, as section 3 of the Act contemplates, employers, through their Human Resource Management Department, must conceptualise sexual harassment within a new work culture that promotes prosocial behaviour and cultivate the right values and attitudes. It means broadening and deepening the appreciation of management and workers beyond notions of ‘respect’ and ‘dignity’ to understanding the need for improved productivity, enhanced profitability, equity considerations and worker engagement.
For employers, the conceptual framework for dealing with sexual harassment must therefore centre on the underlying causes at the systemic level. Sexual harassment must be seen as a ‘cultural issue’ where training must be “focused on the role of cultural factors in influencing perceptions of sexual harassment in the workplace….” and the need to examine “…the role of national culture in sexual harassment and sexual harassment training.”
Thus, a focus on section 3 is imperative to give effect to the real intent of the Act. For this reason, section 8, which requires the keeping of a Sexual Harassment Register, nullifies that intent. Nowhere in the Act is it intended to criminalise any person found to have sexually harassed another. In fact, an examination of section 36 dealing with the making of the awards of the Sexual Harassment Tribunal, call for the dismissal of the person found guilty of sexual harassment as the ultimate punishment. But a Sexual Harassment Registry is going to be akin to a Sex Offender Registry, the latter, of course, containing the names of an offender convicted in a criminal court for sexual offences.
The requirements for a Sexual Harassment Registry are far, far worse than its immateriality, for once your name appears in the register you are, without haste but without remorse, criminalised and stigmatised. What is more, the offence for which you have been ‘convicted’ may simply have been a repeated social invitation deemed unwanted by the recipient, albeit done in a respectful manner; or far worse, is that the allegation against you turned out to be false and malicious.
The need for HR departments to keep records of employees’ misconduct is a well-established practice. In fact, the guidelines in the First Schedule of the Act for the drafting of Sexual Harassment Policy stipulates that “all claims of sexual harassment shall be documented and thoroughly archived for the purpose of monitoring and evaluation.” Section 8 therefore becomes superfluous and dangerous, and although specified with the use of the word “shall” as an imperative command, unlike other sections, carries no stated penalty for failure to comply with its provision.
While, therefore, section 3 of the Act inviolates workers’ rights (broadly defined to mean human rights), consistent with the Charter of Fundamental Rights and Freedom; section 8, it would appear, ostensibly defies, if not defiles, the very letter and spirit of the Charter and therefore ought to be expunged.
— Danny Roberts is a Deputy Chairman of the Industrial Disputes Tribunal (IDT) and a consultant to the Minister of Culture Gender Entertainment and Sport on the establishment of the Sexual Harassment Tribunal
Thanks Danny for a helpful and informative article.
Judith Wedderburn