Sexual harassment is probably the most prevalent form of harassment in the workplace. Employers should have a sexual harassment policy and a Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

This Code is intended to eliminate sexual harassment in the workplace. It does this by assisting employers and employees to understand the nature of sexual harassment as well as ways of responding to it and preventing it.

Defining sexual harassment:

Sexual Harassment does not mean physical molestation only; it also may consist of suggestive ‘verbal or non-verbal conduct’

The Code is unwelcome

The primary and most definitive feature is that the perpetrator’s conduct must be unwelcome. Such conduct does not have to be repeated before it becomes harassment; a single act may constitute harassment if it is obviously unwelcome. This does not mean that the victim has to say in so many words that the conduct is unwelcome. The Code therefore stipulates that the unwelcome nature of the conduct may also communicated by non-verbal means, such as ‘walking away or not responding to the perpetrator’.

It is of a sexual nature

The Code of Good Practice explains that the sexual harassment must be broadly interpreted to include harassment on the grounds of sex, gender or sexual orientation.

It causes the victim distress, discomfort or happiness

Preventing sexual harassment:

An employer’s duty to eliminate unfair discrimination in the form of sexual harassment is to do everything reasonably possible to prevent it. The Code of Good Practice sums up the objective:

Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which complainants of sexual harassment will not feel that their grievances are ignored or trivialized, or fear reprisals.

Three mechanisms are suggested in the Code for achieving this objective:

• The employer should adopt a sexual harassment policy in line with the provisions of the Code and ensure that it is effectively communicated to all employees.

• The Code should, amongst other times, make it clear that sexual harassment constitutes misconduct and specify the disciplinary sanctions that will be imposed on a perpetrator, which may include dismissal.

• Employers should include sexual harassment in their orientation, education and training programmes.

Dealing with sexual harassment:

In essence, the Code requires employers to ‘develop clear procedures to deal with sexual harassment’ and ‘enable the resolution of problems in a sensitive, efficient and effective way’. This should contain at least the following elements:

• It should explain when and how a complaint of sexual harassment can be brought to the attention of employer, either by the complainant or her/his representative.

• It should explain what the employer will do when a complaint has been brought.
This should mean consulting with the relevant parties and taking steps to address the complaint, which should include-

o Advising the complainant of formal or informal procedure that can be followed in dealing with the cause of problem, and

o Providing him/her with any advice or assistance she may need, including counselling by a person with appropriate skills.

The Code urges that confidentiality be maintained throughout the process, also in any disciplinary proceedings that may follow. Failure to develop a policy and procedures in accordance with the Code, on the other hand, may well expose an employer to liability for acts of sexual harassment perpetrated by its employees against other employees.

Medical testing

Section 1 of the Employment Equity Act defines medical testing as including any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition. Section 7 (1) regulates medical testing in general and section 7 (2) deals with HIV testing in particular

Section 7

1. Medical testing of en employee is prohibited, unless

a) legislation permits or requires the testing; or

b) it is justifiable in the light of medical fact, employment conditions, social policy, fair distribution of employee benefits or the inherent requirements of a job.

2. Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50 (4) of this Act.

The first step must be to establish the actual demands that a job will place on employees, what risks they will be exposed to and whether there are medical conditions that would disqualify an employee from meeting those demands. Only then will it be possible to decide on medical testing that is justifiable in order to provide the employer with the necessary information. In some cases the link between a particular job requirement and a relevant medical test may be relatively straightforward. For example, since colour vision is essential for an electrician, an optional test for persons seeking work as electricians may be justifiable. Similarly, an employer is prohibited from employing a pregnant employee in an area.

HIV testing

HIV testing is regulated more strictly than other forms of medical testing. This is made necessary by a number of factors; in particular, the high levels of ignorance concerning HIV, deep prejudice against people living with HIV and, as a consequence, the extremely vulnerable position in which employees suffering from the condition find them. The Employment Equity Act responds in three ways:

• The duty to eliminate unfair discrimination includes the duty to address discrimination on grounds of HIV status by means of appropriate measures;

• Section 6 (1) prohibits discrimination against any employee on the ground of HIV status; and

• Section 7 (2) prohibits HIV testing unless it is determined justifiable by the Labour Court

Section 50 (4)

If the Labour Court declares that the medical testing of an employee as contemplated in section 7 is justifiable the court may make any order that considers appropriate in the circumstances, including imposing conditions relating to-

a) the provision of counselling;
b) the maintenance of confidentiality;
c) the period during which the authorization for any testing applies; and
d) the category or categories of jobs or employees in respect of which the authorization for testing applies.

Two elements will be crucial in justifying compulsory HIV testing;

• First, it will have to be shown that such testing is genuinely necessary in establishing the employee’s ability to do the job. Despite widespread perceptions and prejudice, the reality is that there are very few jobs where an employee’s HIV status is in any way relevant to her or his capacity to perform it.

• Second, assuming that the need for testing has been established, it will have to be shown that the process followed will not only be appropriate but will be fair to the employee/s above all, in preserving strict confidentiality especially as to the result and ensuring that employees are not exposed to any form of prejudice as a consequence of being tested.

Psychological testing

Psychological testing (also known as psychometric testing) is defined as the systematic use of tests to quantify psychological behaviour, abilities and problems and to make predictions about psychological performance.

Section 8 of the Employment Equity Act deals with this extended use of the term by regulating psychological testing and other similar assessments. Psychological testing can be valuable. At the same time psychological testing has been criticized for its perceived lack of exactness. Psychological testing has a potential for racial, cultural or gender bias that may result in unfair (indirect) discrimination: because of (say) her cultural background, a job applicant may struggle to pass a particular test for which a different cultural background was taken for granted. Certain questions, perhaps, are asked in a way that does not make sense to her; had they been asked differently she would have understood them without difficulty.

Section 8 needs to be understood against this background:

Psychological testing and other similar assessments
Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used

a) has been scientifically shown to be valid and reliable;
b) can be applied fairly to all employees;
c) is not biased against any employee or group; and
d) has been certified by the Health Professions Council of South Africa established by section 2 of the Health Professions Act 1974 (Act No.56 of 1974), or any other body which may be authorized by law to certify those tests or assessments.

As with medical testing, therefore section 8 creates a process for establishing the objectivity and fairness of psychological and other similar assessments. Once again the approach id to prohibit such testing unless the employer can justify it. As with medical testing for conditions other than HIV, there is no need to seek prior permission from the court; it is left to the employer to apply its mind as the need for such testing and the form it takes and, if challenged, to justify it.

For further information on the Employment Equity Act any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105