Sexual harassment against women in the work place is not a novel subject. A great deal has been written about it and after decades of learnings, it is well-established that power, patriarchy and privilege are at the core of sexual harassment. However, the fact that this topic has been addressed consistently throughout the past few decades does not make it an unlikely topic; instead, due to its prevalence, it is always ripe for discussion.
The law’s role in sexual harassment
Even with the existence of well-drafted written laws in South Africa, more often than not, the law legitimizes toxic workplace cultures as it fails to interrogate broader organizational cultures that may create a toxic environment in which sexual harassment can thrive.
Whilst it is our court’s objective to eliminate discrimination and to create a working environment where the dignity of all employees is respected, it appears that in cases of sexual harassment, there is a lack of urgency to make space for women’s voices to be heard and believed. Instead, the law provides a platform for unintended silencing of complainants, which has in turn, has allowed for toxic workplace cultures to fester.
The case of Ms M
The case of Gaga v Anglo Platinum Ltd and Others accurately depicts how legal processes fail to create a “safe space” to allow for women to be heard and understood. In this case, a certain Ms M, hereinafter referred to as the Complainant, had resigned after working for her manager for two years. During her ‘exit interview’, when asked why she was resigning, she indicated that she planned to relocate. The person conducting the interview thereafter asked whether her manager had made any inappropriate advances toward her in contravention of the sexual harassment policy, which the Complainant only read the policy during the interview. Upon reading the policy, the Complainant told the interviewer that her manager had started making sexual propositions to her within months of her appointment. The propositions had become increasingly direct and crude, and had been reinforced with SMS messages. The manager was dismissed, as a result of this interview.
The manager thereafter challenged the dismissal at the CCMA. The Commissioner found that the employer had failed to prove that the manager was guilty of sexual harassment on the ground that his conduct had not been shown to have been unwelcome or offensive. The CCMA found that the Complainant must have enjoyed the attention she received because there had been no firm rejection of his advances and she admitted that she enjoyed a good working relationship with the perpetrator. The Commissioner consequently disregarded the victim’s explanation in a manner that is tantamount to victim-blaming, making her responsible for the harassment.
The case above clearly indicates that cases of sexual harassment do not feature women’s voices prominently in the narrative and that the perpetrator’s voice dominates all accounts within the employment realm. Consequently, silence permeates the legal processes and results in women not wanting to come forward.
What is the way forward?
When the law intervenes to remedy sexual harassment, it fails to decipher any transformative process that actually heals the entire process. In order for us to restore dignity and equality in the workplace, a more systematic and structural analysis of the sexual harassment women face, needs to be adopted.
Although sexual harassment policies and procedures remain important, for true transformative change to be felt in the workplace, we need to move beyond the form of these managerial rules and towards the implementation of an agenda that reviews and dismantles the institutional culture. A duty must be placed on employers to recognise that a woman does not have to say ‘no’, and that verbal, and non-verbal cues can be used to express the ‘no’. Such an approach may allow for transformation that dismantles this toxic environment in which sexual harassment can thrive.
In conclusion, it is evident that currently, when the law intervenes to remedy sexual harassment, it may instead provide a platform in which toxic masculinity is allowed to fester. For true transformative change to be felt, something more is required. Addressing the underlying structural dynamics of patriarchal power is what is required to eradicate discrimination.
Author: Orea Vidjak, Candidate Attorney – Biccari Bollo Mariano Inc.