Sexual Harassment

5. Sexual Harassment

5.1 Sexual harassment of an employee is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or sexual orientation. Same sex harassment can amount to discrimination on the basis of sex, gender sexual orientation and gender-based harassment.

5.2 Factors to establish sexual harassment

Unwanted conduct

5.2.1 There are different ways in which an employee may indicate that sexual conduct is unwanted, including non-verbal conduct such as walking away or not responding to the perpetrator.

5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that the conduct continue to be acceptable to the employee.

5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is unwarrented, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.

5.2.4 The fact that the complainant does not indicate that the conduct is unwanted does not entail that there has not been sexual harassment, if the the conduct is such that the harasshe/perpetrator might ought to have known it could be regarded as unwanted.

Nature and extent of the conduct

5.2.5 The unwanted conduct must be of a sexual nature and include physical, verbal or non-verbal conduct, whether expressed directly or indirectly. Conduct amounting to sexual harassment may include: physical conduct of a a sexual nature, ranging from touching, to sexual assault and rape; Strip searching, including by a person of the same sex in the presence of the opposite sex, or with appropriate privacy:; following, watching, pursuing or accosting of an employee.

It is important that with this clause that if in the execution of the duties of an employer, if an employee should walk away from the conversation with their supervisor, may be charge with serious misconduct. Now as a first offence or not knowing the rule the supervisor would prefer to engage in a conversation with the employee. So, in a case like this where all the activities may be the same, it will not class as sexual harassment. The intent of the above is not of a sexual nature. If the employee claim as much and found to overreacted or made accusations of harassment because of the above action, it could be regarded as serious misconduct which could include dismissal. Sexual attention, advances or proposals; or other behaviour, whether explicit or implicit, including suggestions, messages, advances, attention or proposals of a sexual nature. Implied or express threats of reprisal or actual reprisal to comply with sexually oriented requests, advances, attention or proposals. Verbal condct such as innuendos, suggestions, hints, sexual advances comments with sexual overtones, sex-related or insults, graphic comments about a person’s body, inapprpriate enquiries about a person’s sexx life, whistling of a sexual nature and the sending by electronic means of otherwise of sexually explicit text, or Non-verbal conduct such as unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.

5.2.6 Sexual harassment may include, but is not limited to victimization, Quid pro quo harassment, sexual favoritism and creating or permitting a hostile environment (i.e. conduct that creates an intimidating, hostile or humiliating working environment for the recipient. Victimization occurs where and employee is victimized or intimidated for failing to submit to sexual advances, attention or proposals or for complaining about gender-insensitive conduct. Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management, or co-employee, influences or attempts to influence an employee’s employment circumstances. Sexual favoritism is a form of Quid pro quo harassment, which occurs where a person in authority in the workplace seeks to utilize this power to reward those who respond to his or her sexual advances. 

5.2.7 A single incident of unwelcome sexual conduct may constitute sexual harassment.

Impact of the Conduct

5.2.8 The conduct should constitute an impairment of the employee’s dignity, taking into account. the circumstances of the employer; and the respective positions of the employee and the perpetrator in the workplace.

Test for Sexual Harassment

5.3.1 Sexual harassment is unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. Sexual harassment may be offensive to the complainant, make the complainant feel uncomfortoble or cause harm or inspire the reasonable belief that the complainant may be harmed. Sexual harassment may interfere with the work of the complainant although it need not necessarily do so. Sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace.

5.3.2 The test for establishing whether there has been sexual harassment takes into account the following factors; Whether the harassment is on prohibited grounds of sex and/or gender and/or sexual orientation. whether the sexual conduct was unwanted or unacceptable. the nature and extent of the sexual conduct. the impact of the sexual conduct on the employee.