Is your boss too hot to handle? Don’t slap him. Sue him. That’s the modern way to fight sexual harassment.

I never expected to slap my first boss, or indeed any boss, in the face. But I did. I was just as shocked as he was after my hand whipped across his cheeks in the middle of the office, bringing the general hilarity and laugher to a standstill.

It was over quickly and we looked at each other incredulously. I mean, who would do such a thing a few months into her first job? I knew in those fleeting seconds we made eye contact that I didn’t have much of a career trajectory in that company.

Just before that, my old boss had spontaneously and inexplicably reached out and squeezed my breasts. I’d had no control over my arm. It just swung back and then came forward with full power before I’d had time to think about what was going on.

Everyone, including me, “knew” it wasn’t sexual harassment. I’m not exactly Pamela Anderson in that department and I was wearing a pretty boring t-shirt with a round neck. Besides, his way of connecting with his staff was to joke around, and that included flirting and touching his female employees. That was his style.

Years later, I came across a former colleague who had been groped by this man in his car after he had offered her a lift home. She updated me on how he was doing.

She revealed to me that our old boss had had problems with an illness and, as a result, had to have the tips of his fingers amputated.  We couldn’t help but marvel at this prime example of poetic justice.

He’s dead now. I don’t think anyone ever took legal action, or even took him to task particularly, for behaviour that was considered quite acceptable not that long ago in the work environment. 

Today, you will get into trouble for much less. As legal experts Mark Meyerowitz and Shane Johnson discuss in this article on sexual harassment, even your emails could be taken the wrong way. What’s more, you don’t have to be doing the dirty deeds to face action: bosses beware, you could be liable for someone else’s conduct. – JC

By Mark Meyerowitz and Shane Johnson

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).

The Protection from Harassment Act, No 17 of 2011, (PHA) came into force on 27 April 2013 and goes together with the EEA. The PHA applies to everyone who commits harassment acts and is designed to protect stalkers’ victims as well as other individuals who commit acts of harassment. This includes harassment in the workplace.

The PHA defines ‘non-sexual harassment’ as non-sexual conduct:

• Where the perpetrator knows his conduct causes:- Physical or psychological harm, or
  – Inspires a reasonable belief that harm may be caused.

According to the PHA, sexual harassment is:

• Unwelcome sexual attention from a person who knows, or ought reasonably to know, that the attention he gives is unwelcome.

This act also broadens the definition of harassment to include electronic communication, such as e-mails, which can be used as a mechanism to harass persons.

Victims of harassment, in terms of the PHA, are entitled to have an interim protection order issued against the person who is harassing them.

Together with the protection order, an arrest warrant will be issued against the harasser and this will remain valid until the protection order expires or is set aside.

Employers beware: The victim and her harasser may be in the same workplace

If a court grants a protection order against the harasser, the employer will have to take steps to ensure that the protection order is upheld. This may include instituting disciplinary action against the harasser or transferring him to another department:

• In Grobler v Naspers Bpk en n’ ander [2004] All SA 160 (CC), a manager was found guilty of sexually harassing an employee.
• The court found the employer was vicariously liable for the manager’s conduct because the company didn’t take appropriate action to prevent the harassment.
• The employer was liable for the damages.

This decision indicates that employers could be held vicariously liable for harassment through vicarious liability.

 This article is republished here with the kind permission of HR Pulse – The knowledge hub for HR professionals.

Mark Meyerowitz is an associate in the employment law practice at Cliffe Dekker Hofmeyr. He joined the firm in 2010 as a candidate attorney and was promoted to associate in 2012. He specialises in employment law.

Shane Johnson is a candidate attorney in the Employment practice at Cliffe Dekker Hofmeyr. He joined the firm in 2013 after completing an LLB at the University of the Witwatersrand.