Description

2400 Molony’s Guide to Sexual Harassment in the Workplace

1. An introduction to sexual harassment

2. Employer liability for sexual harassment

3. Prevention of sexual harassment

4. Dismissal on the ground of sexual harassment

Chapter 1: Table of Contents

1. Introduction
2. Terminology
3. The legal context of sexual harassment

3.1        The Employment Equity Act [EEA]

3.2        The Promotion of Equality and the Prevention of Unfair Discrimination Act [‘PEPUDA’]

3.3        Protection from Harassment Act, 2011

3.4        The Codes of Good Practice

3.4.1     The 1998 Code

3.4.2     The 2005 Code

4. What does ‘harassment’ mean?

4.1        Whistle blowing harassment

4.2        Harassment related to pregnancy and family responsibilities

4.3        Workplace bullying

5. What does ‘sexual harassment’ mean?

5.1        Unwelcome conduct

5.2        Conduct of a sexual nature

5.2.1     Physical conduct

5.2.2     Verbal conduct

5.2.3     Non-verbal conduct

6. Forms of sexual harassment

6.1        Victimization

6.2        Quid pro quo harassment

6.3        Sexual favouritism

6.4        Hostile work environment harassment

7. Who does the Code apply to?
8. What can a victim of sexual harassment do?
9. The impact of sexual harassment

9.1        Impact of sexual harassment on the victim

9.2        The impact of sexual harassment the employer

10. What rights does a victim of sexual harassment have?

10.1      Informal procedures which could be followed

10.2      Formal procedures which could be followed

10.3      Advice, assistance and counselling

10.4      Additional sick leave

10.5      Confidentiality and right to information

11. Why does sexual harassment happen? The role of power and masculinity
12. Conclusion

Chapter 2: Table of Contents

1. Introduction
2. Employer’s liability in terms of s 60 EEA

2.1        Employment relationship

2.2        The conduct contravened the EEA i.e. the conduct was sexual harassment

2.3        The sexual harassment took place at work or was relevant to the workplace

2.4        The conduct is brought to the attention of the employer immediately

2.5        The employer failed to take necessary steps to eliminate the conduct

2.6        The employer failed to take reasonably practicable steps to ensure that the perpetrator would not sexually harass another employee

2.7        Summary of the elements

3. Claims in terms of the common law

3.1        Vicarious liability

3.2        The common-law duty of an employer  to take reasonable care for  the safety of their employees

4. The Labour Relations Act, 1995 – Constructive dismissal
5. Constitutional damages
6. Conclusion

CHAPTER 3: PREVENTION OF SEXUAL HARASSMENT

 Table of Contents

1. Introduction
2. What should someone who has been sexually harassed do?
3. The development and implementation of a sexual harassment policy
4. Sexual harassment policies

4.1        Guiding principles

4.2        Founding statements

4.3        Step 1: Reporting

4.3.1     Statistics regarding the lack of reporting of sexual harassment incidents

4.3.2     Reasons for not reporting sexual harassment incidents

4.4        Step 2: Investigate

4.5        Step 3: Disciplinary action

4.6        How effective are sexual harassment policies and procedures?

4.7        Guidelines for the effective implementation of  sexual harassment policy

5. The communication of the sexual harassment policy
6. Creation and maintenance of a workplace culture
7. Training
8. Conclusion

CHAPTER 4: DISMISSAL ON THE GROUND OF SEXUAL HARASSMENT

Table of Contents

1. Dismissal on the ground of sexual harassment
2. Forms of sexual harassment
3. Proving sexual harassment
4. The disciplinary hearing and its impact on the arbitration
5. The elements of sexual harassment

5.1        Employment relationship

5.2        The conduct complained of

5.3        The conduct of the perpetrator was unwelcome

5.4        The conduct of the employee was of a sexual nature

5.5        The conduct violated the rights of the victim

5.6        The conduct constituted a barrier to equity in the workplace

6. The chairperson and arbitrator’s decision: the test for sexual harassment
7. Substantive fairness

7.1        Relevance to the workplace

7.2        The rule was valid and reasonable

7.3        Awareness of the rule and standard

7.4        The rule or standard was applied consistently

7.5        Dismissal was the appropriate sanction

8. Sexual harassment outside of the workplace
9. Criminal conduct