Sexual harrassment in the workplace is not a new phenomenon but has only attracted intersest for
the past 30 years. Before it was nearly invisible and inaudible.1 Though even today is still often
considered as being a trifling offence. The following examines the status of sexual harrasment in
South African Law and presents different approaches to a definition of this divers term.
Table of Contents
Introduction
I. Definition and Development of the term
1. Nature of conduct
2. Effect of the conduct
a) Hostile working environment harrassment
b) Quid pro quo harrassment
3. Un-welcomeness
a) Subjective test
b) Objective test
c) The reasonable victim test
II. The South African approach to the definition of sexual harrasment
1. The 1998 Code of Good Practise
2. The 2005 Code of Good Practise
3. Sexual harrassment as discrimination
4. The liability of the employer
Conclusion
Research Objectives and Core Themes
This assignment examines the legal status of sexual harassment in South Africa, focusing on the evolution of its definition and the mechanisms for employer liability. The primary goal is to analyze how different codes of practice and legal interpretations address the challenges of defining sexual harassment in the workplace, particularly regarding victim perception and the necessity of employer intervention.
- Evolution of the legal definition of sexual harassment in South Africa.
- Distinction between forms of conduct, including hostile working environment and quid pro quo harassment.
- Critical analysis of subjective versus objective tests in determining the "un-welcomeness" of conduct.
- Employer obligations and vicarious liability under the Employment Equity Act and Codes of Good Practice.
Excerpt from the Book
1. Nature of conduct
It is possible to approach the term with reference to the nature of the committed conduct. This might work in cases of typical and obvious sexual oppression but one would take the risk to exclude behavior which is not of sexual nature but which is implemented in a sexual oppressive manor. Furthermore sexual interaction, even at work is in principle accepted by the law and does not necessarily contain harrassment. Therefore the nature of the conduct on its own can not be the decisive factor in finding cases of sexual harrassment. Nevertheless it can be the first step, though the conduct must be unwelcome and attain a certain level of unacceptability.
When we look at the nature of conduct one can identify several forms. A sexual conduct can for instance consist of physical, verbal (comments with sexual overtone, sex related jokes etc.) and non-verbal conduct (gestures, sexual exposures etc.) but also of assault and even rape.
In order to find cases of sexual harrassment the existence of one or more of these grounds can help to arrive at conclusions but they have to be completed by others elements such as the effect of the conduct on the victim.
Summary of Chapters
Introduction: Outlines the historical context of sexual harassment in the workplace and the increasing need for legal clarity in South African law.
I. Definition and Development of the term: Explores the complexities of defining harassment, covering the nature of conduct, the effects on the victim, and tests for determining un-welcomeness.
II. The South African approach to the definition of sexual harrasment: Analyzes the shift from the 1998 Code to the 2005 Code, discusses harassment as discrimination, and clarifies employer liability.
Conclusion: Summarizes the necessity of effective workplace protection and the importance of employer accountability in labor law.
Keywords
Sexual Harassment, Employment Equity Act, Workplace, South African Law, Quid Pro Quo, Hostile Working Environment, Un-welcomeness, Victim Perspective, Employer Liability, Discrimination, Code of Good Practise, Reasonable Victim Test, Vicarious Liability, Gender, Labor Law.
Frequently Asked Questions
What is the fundamental subject of this work?
The work provides a legal analysis of sexual harassment within the South African workplace, focusing on its definition and the legal responsibilities of employers.
Which thematic areas are central to this analysis?
The central themes include the evolution of legal definitions, the distinction between various forms of harassment, the subjectivity of victim experiences, and the statutory liability of employers.
What is the primary objective of this study?
The objective is to explore how South African law defines and manages sexual harassment to ensure effective protection for employees.
Which scientific methodology is applied?
The study employs a descriptive and critical legal analysis, comparing historical codes of practice and relevant case law.
What is covered in the main section of the document?
The main section discusses the nature of harassing conduct, the legal interpretation of un-welcomeness, the transition between 1998 and 2005 Codes of Good Practice, and employer liability.
Which keywords best characterize this work?
Key terms include sexual harassment, South African labor law, employer liability, Employment Equity Act, and workplace discrimination.
How does the 2005 Code differ from the 1998 Code regarding victim impact?
The 2005 Code shifts focus from the perpetrator's intent toward the actual effect on the victim, providing a more subjective approach to determining harassment.
Why is the "reasonable victim" test considered a favorable middle ground?
It balances subjective elements (victim perception) with objective criteria (surrounding circumstances), avoiding the pitfalls of purely subjective or purely objective tests.
Under what circumstances can an employer be held liable for an employee's actions?
An employer is liable if they fail to take steps to eliminate conduct brought to their attention, or if they fail to implement and communicate proper sexual harassment policies as required by the Employment Equity Act.
- Quote paper
- Stephan Müller (Author), 2008, Sexual Harrassment in the Working Place, Munich, GRIN Verlag, https://www.grin.com/document/123574
