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Sexual Harassment

Extreme penalties for sexual harassment

In the Real Security case, an unfair discrimination claim was based on the law that sexual harassment is unfair discrimination. The automatically unfair dismissal claim was based on the fact that the employee was forced to resign because her employer allowed her to be discriminated against by the supervisor who sexually harassed her. In this case, the court cited section 60 of the Employment Equity Act (EEA).

In the Real Security case, an unfair discrimination claim was based on the law that sexual harassment is unfair discrimination. The automatically unfair dismissal claim was based on the fact that the employee was forced to resign because her employer allowed her to be discriminated against by the supervisor who sexually harassed her. In this case, the court cited section 60 of the Employment Equity Act (EEA).

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What constitutes ‘sexual harassment’ in the workplace?

So what would you do if a business colleague, at an off-duty dinner, made inappropriate comments, of a sexual nature, to you? Would this statement merely be an inappropriate comment – or conduct that constitutes sexual harassment? It is interesting to note that the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court (LC) accepted that even though the conduct occurred off-duty, it could still be dealt with as a labour law matter.

So what would you do if a business colleague, at an off-duty dinner, made inappropriate comments, of a sexual nature, to you? Would this statement merely be an inappropriate comment – or conduct that constitutes sexual harassment? It is interesting to note that the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court (LC) accepted that even though the conduct occurred off-duty, it could still be dealt with as a labour law matter.

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Are sexual advances unfair?

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After unfair dismissal and unfair labour practices, the third category of unfair conduct by an employer is unfair discrimination. Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds, including race, age, disability, sex and many others. Unfair discrimination can take many forms. For example, if an employee is sexually harassed, this is a form of unfair discrimination based on gender. But what if the employee denies that his/her advances were sexual in nature? In this case, can the employer be made liable for unfair sexual discrimination?

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Sexual harassment and gender discrimination are not the same

Sexual harassment

Section 6(1) of the Employment Equity Act (EEA) prohibits employers from, directly or indirectly, unfairly discriminating against an employee on any ground including gender and sex. Also, section 6(3) categorises employee harassment on these grounds as unfair discrimination and prohibits these practices. However, in the definition section of the EEA ‘sexual’ or ‘gender’ discrimination aren’t defined. As these two terms are often used interchangeably, it’s important to assess why these have different legal meanings.

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Harassment in the workplace, restraining orders and the Protection From Harassment Act

 

Employers have a duty to create and maintain a safe working environment for their employees. This includes the duty not to allow one employee to harass another or make it easier for one staff member to harass another. If you, as an employer, don’t take the proper steps against an employee who harasses another employee, you could be facing a harassment lawsuit under the Employment Equity Act (EEA).

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