SEXUAL HARASSMENT AS MISCONDUCT - IS THERE STRICT LIABILITY FOR
HARASSERS? (1994) 15 ILJ 491
Sexual harassment is a common occurrence in the South African workplace. Fortunately,
there is a growing trend among employers to recognize it as an undesirable and serious
form of misconduct. Nevertheless, there is still uncertainty about what kind of conduct
the term 'sexual harassment' covers and how to deal with employees who are accused of
committing it.
A recent arbitration award, Pick & Pay Stores Ltd and An Individual, 1 by an IMSSA
arbitrator in the Western Cape offers a detailed definition of sexual harassment. But in
attempting to lay to rest this particular ghost the award raises a troubling spectre. An
employee will be guilty of sexual harassment if the woman who has been harassed says
that she found the harasser's conduct offensive or unwanted. It does not matter that the
harasser says that he did not mean to give offence or that he genuinely but mistakenly
misread the signals and thought that his actions would be welcomed.
The grievant in the arbitration worked as a chief buyer in one of a large supermarket
chain's stores. He was dismissed after he had been found guilty on two charges arising
out of a single incident involving a female outside supplier who had come to the store on
business. The charges were framed as follows:
'(a)
[B]ehaviour that has caused the company's name to come into disrepute in
that you sexually harassed an outside supplier . . .; and
(b)
sexually harassing a female supplier in that you forced yourself physically
upon her.'
There was no significant dispute about the facts of the incident which gave rise to the
grievant's dismissal: The grievant and the complainant had known each other in a
business capacity for a number of years. On the morning of the incident the complainant
arrived at the store on a regular visit. She encountered the grievant who was doing a
'floorwalk' and then went to a small office nearby which is often used by sales
representatives. She was wearing a longish double-breasted jacket, a white shirt and black
tie, knee-length suede boots and tight-fitting jodhpurs - apparently not an unusual outfit
for the complainant and it was common cause that she dressed in a striking fashion. The
grievant appeared at the doorway of the office where the complainant was sitting. After
they had exchanged some words the grievant entered the office, simultaneously palming
the door closed whereupon the
1994 ILJ p492
Yale-lock engaged, locking the door. The grievant moved towards the complainant and
embraced her physically. She resisted his attentions with her clipboard which she held up
in front of her and said, more than once, that she was a happily married woman. The
grievant kissed her on the cheek and touched her breast and trousers. After a minute or
two he desisted, turned on his heel, unlatched the door and went to his office.
The core of the grievant's defence against the charge of sexual harassment was that his
actions were justified in the light of the complainant's generally 'provocative' dress, her
flamboyant or unorthodox behaviour and her friendliness towards him. His version of the
incident was that he thought the complainant wanted him to give her a squeeze and a hug
because she liked him. This belief on the part of the grievant was based on one or two
minor remarks and incidents in the past and the complainant's alleged invitation to him to
'feel [her] sexy pants'.
The grievant's representative contended that sexual harassment occurs only where there is
'unwelcome conduct of a sexual nature' between persons and that mens rea (on the part of
the harasser) is an essential element of sexual harassment. Accordingly, it was argued
that the grievant was not guilty of sexual harassment because he had thought that his
actions were welcomed by the complainant and he had stopped as soon as he realized that
she was resisting his attentions. Accordingly, he lacked the requisite mens rea. In essence
the defence put to the arbitrator was that the grievant did not realize or suspect that the
complainant would object to his attentions because he mistakenly believed that she would
welcome his conduct as she had invited it.
In his analysis the arbitrator stated that conduct amounts to sexual harassment if it is (i)
'unwanted', signifying a subjective test, ie in the eyes of the person being
harassed;
(ii)
of a sexual nature (or where an employee's gender is treated as being more
important than his or her work or status as an employee);
(iii) physical, verbal or non-verbal;
(iv)
affects the dignity of the harassed person at work, or creates a negative or
hostile environment for that person; and
(v)
an element of coercion or abuse of power is implicit in such conduct.
(At 141.)
Apart from the first element, this definition is uncontentious and accurately reflects the
way in which sexual harassment is understood in Europe and North America.
The arbitrator had no difficulty finding that the grievant's conduct conformed with the
last four elements of the definition
1994 ILJ p493
and stated that the crucial question was whether the conduct was unwanted. He then went
on to answer the question as follows:
'On the subjective test there can be no doubt that [the complainant] found the
conduct unwelcome: indeed, shocking and humiliating. Even if one were to assume an
objective stance, [the grievant's] evidence of [the complainant's] invitation to him to "feel
her sexy pants" was not stated with certainty or conviction and was flatly denied by [her].
The further factors mentioned by [the grievant] as creating the climate in which he
assumed his embrace would be welcome (such as a single kiss on the cheek some months
before, in the presence of others, a reported reference to him as a "good-looking man",
and a leaning-across his body by [the complainant] to make a telephone call) are flimsy
indications in the extreme. A further fact which is common cause, that [the grievant]
closed the door behind him (leaving aside whether he knew that it would lock) before
moving in on [the complainant] counts heavily against his protestations of innocence
about his friendly cuddle.
I find therefore that [the grievant's] conduct was unwanted, in an objective sense,
even though it is possible that he might subjectively have assumed that it would not be
so. From the complainant's subjective point of view it was clearly unwanted.'
(At 141-2 - emphasis added.)
The arbitrator also felt 'constrained to respond' to a point which was made several times
on the grievant's behalf, viz that the complainant's dress and general demeanour
constituted an invitation to the grievant's conduct:
'While such factors may play some part in exceptional cases when it comes to
assessing the sanction to be imposed on a guilty perpetrator in cases of sexual
misconduct, they can never, in my view, without more be deemed to constitute the type
of "incitement" which was clearly hinted at in the evidence. [The complainant] herself
put it trenchantly in her evidence: "Am I allowed to be condemned for what I wear?" '
(At 142 - emphasis added.)
The requirement of fault
The arbitrator does not deal at any length with the argument that the disciplinary offence
of sexual harassment requires that the person who is accused of it (even if he admits the
conduct) must have acted with mens rea, in the sense that he knew or realized that his
conduct would be unwanted or unwelcome, before he is found guilty. This argument is
not addressed seriously. The reason for this appears to lie in the confusion between what
should be two separate enquiries: (i) the 'unwanted' nature of the conduct; and (ii)
whether the grievant should be blamed for such conduct.
The first enquiry aims to establish whether the conduct in question was in fact
unwelcome - here one must ask whether the complainant, in her own mind, wanted the
grievant to do to her what he did do. This question of necessity focuses on the
1994 ILJ p494
complainant's subjective state of mind at the time of the incident. It is not important to
examine the grievant's state of mind at this stage because it can shed no light on whether
the complainant really welcomed his attentions or not. The grievant's state of mind only
becomes important once it has been established that his conduct was indeed unwanted
and that it had one or more of the negative effects associated with sexual harassment.
However, the complainant's dress, demeanour and previous dealings with the grievant
may be relevant in rare cases as it is permissible to draw an inference about the
complainant's state of mind, and in particular her attitude to the grievant's conduct, from
such objective facts and circumstances. But this does not mean that a woman who dresses
in a manner that most men consider provocative or who flirts can be presumed to be open
to sexual advances from all comers.
In the second enquiry the question posed is whether the grievant can be blamed for his
conduct - ie was he at fault for what he did? If, for example, the grievant knew or
suspected that his attentions would be unwelcome and still persisted with his conduct
then it is clear that he is guilty of harassment and should suffer some sanction. The
situation is quite different if the grievant genuinely believed that his attentions would be
welcome. In such a case - like in the arbitration where the arbitrator found that it was
possible that the grievant might have (subjectively) assumed that his conduct was not
unwanted - it might be appropriate to blame the grievant for being insensitive or deluded
about the complainant's desire for him. But it would be wrong to find him guilty of sexual
harassment, even if one has the greatest sympathy or compassion for the complainant
who suffered at his hands.
It is an important general principle of our law that there should be no liability without
fault. There does not seem to be any good reason why this principle should not apply in
cases of sexual harassment. The arbitrator certainly did not provide one nor do any of the
cases or the academic writings that he relied upon say that the principle must be
abandoned (see J v M (1989) 10 ILJ 755 (IC) ; Mampuru v Putco (NH 11/2/2136); J G
Mowatt 'Sexual Harassment - New Remedy for an Old Wrong' (1986) 7 ILJ 449 ; L
Dancaster 'Sexual Harassment in the Workplace: Should South Africa Adopt the
American Approach?' (1991) 12 ILJ 449 and J Campanella 'Sexual Harassment' (1992) 9
Employment Law 8). In fact the leading case, J v M, in which the Industrial Court found
that the applicant's dismissal for sexual harassment was fair, must be read as requiring
mens rea. In that case the court found that the harasser knew that his behaviour was
unacceptable and that it was not right for him to do what he was doing. It rejected his
protestations to the contrary in the following terms:
1994 ILJ p495
'The general manager of the plant concerned had on several occasions discussed
applicant's behaviour with him. He had, during February 1988, given the applicant a last
warning. . . . He [the applicant] fully realized that his behaviour was unacceptable and
that he would not be warned again.
The applicant's protestations in his affidavit that his behaviour was no more than
mildly flirtatious or "mediterranean" is untrue. He in fact knew that his behaviour was
unacceptable to many, that "it was not right for me to do what I was doing". He however
persisted in his behaviour despite the fact that he was told both verbally and by actions
that employees did not appreciate his unwelcome attentions. His attitude to employees
was that if they did not like his attentions they could complain. He saw no need to follow
acceptable standards of sexual behaviour, namely seeking mutual pleasure between two
consenting adults, with the emphasis on consenting.'
(At 759G-J - emphasis added.)
The court was so convinced of this that it said that if the harasser had been charged
criminally for indecent assault he would have found it difficult to defend himself (at
760A).
The problem with the approach that liability for sexual harassment requires fault or mens
rea on the part of harassers is that it is all too easy for men to claim that they believed that
their female victims wanted what they got and so escape being sanctioned for their
harmful conduct. The concern to treat employees facing sexual harassment charges fairly
and justly should not blind one to the fact that sexual harassment is a serious barrier to
women enjoying equality instead of suffering abuse in the workplace. But is it at all
possible for employers to discipline employees for sexual harassment effectively and
respect the principle of no liability without fault at the same time?
The role of negligence
The answer is yes; the solution lies in the kind of fault required. For example, in Canada
the Ontario Human Rights Code defines harassment generally as 'engaging in a course of
vexatious comment or conduct that is known or ought reasonably to be known to be
unwelcome'. It is therefore possible to harass another person negligently. This code also
deals specifically with sexual harassment. It provides that 'every employee . . . has a right
to freedom from harassment in the workplace because of sex by his or her employer or
agent of the employer or by another employee' and then describes the conduct element in
more detail.
Negligent sexual harassment is also recognized in the law of the European Community.
Paragraph 2.1 of the European Code of Practice on Measures to Combat Sexual
Harassment, published in 1993, defines sexual harassment as 'unwanted conduct of a
sexual nature, or other conduct based on sex affecting the dignity of women and men at
work. This can include unwelcome physical,
1994 ILJ p496
verbal or non-verbal conduct'. The definition is broad enough to cover both types of
sexual harassment, ie quid pro quo harassment and the creation of a hostile work
environment. This is made clear by para 2.2 of the code which states:
'[A] range of behaviour may be considered to constitute sexual harassment. It is
unacceptable if such conduct is unwanted, unreasonable and offensive to the recipient; a
person's rejection of or submission to such conduct on the part of employers or workers
(including superiors or colleagues) is used explicitly or implicitly as a basis for a decision
which affects that person's access to vocational training or to employment, continued
employment, promotion, salary or any other employment decisions; and/or such conduct
that creates an intimidating, hostile or humiliating working environment for the recipient.'
The focus of sexual harassment is thus sharply on how the conduct is regarded and
experienced by the recipient/complainant. Paragraph 2.3 of the code states that:
'The essential characteristic of sexual harassment is that it is unwanted by the
recipient, that it is for each individual to determine what behaviour is acceptable to them
and what they regard as offensive. Sexual attention becomes sexual harassment if it is
persisted in once it has been made clear that it is regarded by the recipient as offensive,
although one incident of harassment may constitute sexual harassment if it is serious
enough. It is the unwanted nature of the conduct which distinguises sexual harassment
from friendly behaviour, which is welcome and mutual.'
This paragraph contains an explicit reference to fault on the part of the harasser - his
conduct becomes unlawful and blameworthy in less serious cases only once it has been
made clear to him it is unwelcome and offensive and he then persists in it. But the
question remains whether fault is a requirement in a serious case based on a single
incident. This issue is addressed by Michael Rubenstein in The Dignity of Women at
Work - A Report on the Problem of Sexual Harassment in the Member States of the
European Communities Parts I-II, a document published by the Commission of the
European Communities in 1988, which served as the basis for the code. At 43 of the
Report, Rubenstein suggests that in extreme cases the harasser need not be advised that
his conduct is unduly intrusive or humiliating. A better test according to him is to impute
constructive knowledge where appropriate and where actual knowledge is absent.
Fortunately, Rubenstein clarifies his view by adding: 'This would encompass conduct
which the perpatrator knew or should have known was offensive to the victim.' In effect
this is a plea for the acceptance of negligence as a sufficient form of fault for sexual
harassment, at least where the conduct complained of is serious.
The practical consequences of adopting negligence as a standard of fault is that it
becomes much more difficult for the accused person to raise the defence that he believed
that his advances
1994 ILJ p497
would be welcomed, because now he would have to show not only that such belief was
genuine but also that it was reasonable - in the sense that the average employee in his
position would have had the same belief. Also, the chances of such a defence not
succeeding are greatly increased if the applicable disciplinary code contains sexual
harassment as an offence and the employer has a clear and well-known policy on the
matter as this would place a duty on all employees to be careful when making sexual
advances which may be unwelcome.
When viewed in this way the negligence standard may seem to operate harshly against
people who are accused of sexual harassment. But it does allow employers to strike a
balance between two difficult duties - promoting equality and doing justice to individual
employees.
Developing a policy on sexual harassment
Achieving equality in the workplace is an important ideal but it should not be pursued
uncritically and at the expense of existing principles. This is illustrated also by recent
legal developments in the USA which introduced the objective standard of
reasonableness into another area or element of sexual harassment, ie in the determination
of what makes an abusive or hostile work environment. This approach limits the wide
ambit of liability which would otherwise arise from a purely subjective test for whether
conduct has the effect of creating a hostile work environment and so constitutes sexual
harassment.
In the case Teresa Harris, Petitioner v Forklift Systems Inc (62 USLW 4004 No 92-1168)
which was decided in November last year the US Supreme Court was unanimous that
conduct will create a hostile work environment if it is severe or pervasive enough to
create an environment that a reasonable person would find hostile or abusive and, in
addition, is perceived as such by the complainant. This case also clearly outlines the
unacceptable harm of sexual harassment in the form of a hostile work environment:
'A discriminatorily abusive work environment, even one that does not seriously
affect employees' psychological well-being, can and often will detract from employees'
job performance, discourage employees from remaining on the job, or keep them from
advancing in their careers.'
(Per Justice O'Connor at 4005.)
Justice Ginsburg sums it up well when she says:
'[T]he adjudicator's inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff's work performance.
. . . It suffices to prove that a reasonable person subjected to the discriminatory conduct
would find, as the plaintiff did, that the harassment so altered working conditions as to
make it more difficult to do the job.'
(At 4006.)
1994 ILJ p498
The Harris case is significant because it is an illustration of a broader approach to sexual
harassment which, while firmly recognizing the importance of equality, does not allow
employees or their employers to incur liability solely on the basis of the complainant's
subjective feelings and perceptions. Such an approach fits comfortably with the principles
and practice of our law and could therefore be applied fruitfully in South Africa. There
are also strong policy reasons in favour of adopting an approach which focuses on
reasonableness as the test for fault on the part of the harasser, as well as the effect on the
victim.
Equality is an important value which must be promoted in the workplace. Sexual
harassment is a significant barrrier to the enjoyment of equality, especially for women, as
it is a form of discrimination which violates the principle of equal treatment. The
European code referred to above pinpoints the problem as follows in para 1.8:
'In general terms, sexual harassment is an obstacle to the proper integration of
women into the labour market and the Commission is committed to encouraging the
development of comprehensive measures to improve such integration.'
Since negligence as the standard of fault will allow employers to discipline harassers
more readily it can contribute to the elimination of discrimination at work and so promote
equality.
There is a general duty both in common law and statute on employers to provide a
workplace that is without risk to the safety or health (including mental health) of
employees. This requires employers to set the standards of acceptable behaviour which
employees must abide by to create and maintain a healthy and safe working environment;
this includes an environment free of sexual harassment. Again the European code is
instructive. Section 5.A of that document contains a set of recommendations to employers
to prevent sexual harassment:
'5.A.1 As a first step in showing senior management's concern and their
commitment to dealing with the problem of sexual harassment employer's should issue a
policy statement which expressly states that all employees have a right to be treated with
dignity, that sexual harassment will not be permitted or condoned and that employees
have a right to complain about it should it occur.
5.A.2 It is recommended that the policy statement makes clear what is considered
inappropriate behaviour at work, and explains that such behaviour, in certain
circumstances, may be unlawful. It is advisable for the statement to set out a positive duty
on managers and super- visors to implement the policy and to take corrective action to
ensure complainance with it. It should also place a positive duty on all employees to
comply with the policy and to ensure that their colleagues are treated with respect and
dignity.
5.A.3 In addition, it is recommended that the statement explains the
1994 ILJ p499
procedure which should be followed by employees subjected to sexual harassment
at work in order to obtain assistance and to whom they should complain. . . . It should
also specify that appropriate disciplinary measures will be taken against employees found
guilty of sexual harassment.'
In the South African context such a policy statement could be made known to all
employees and then be incorporated into an existing disciplinary code, along with a
clearly defined offence of sexual harassment and an indication of the likely sanction for
transgressors.
Remedying harassment
The arbitrator in the Pick & Pay Stores Ltd matter was well aware of the employer's duty
to provide a safe working environment and the desirability of having a clear, known
policy on sexual harassment.
The grievant's representative argued that the employer did not have the jurisdiction to
discipline him on the charge of sexual harassment as the complainant was not one of its
employees. On the facts of the incident the arbitrator had little difficulty in rejecting this
argument and finding that the employer did have the jurisdiction to discipline the grievant
for his actions which were performed as an employee and on the employer's premises.
There were essentially two reasons for this finding. Firstly, the grievant's relationship
with the complainant was directly work related: '[the relationship] was predicated on the
power which he, as chief buyer, exercised over her as an agent for a supplier. This
relationship would not have existed had [he] not been placed in this position by his
employer' (at 140). Secondly, the arbitrator stated the following:
'[I]t is universally acknowledged that every employer has the duty to provide a
working environment which is safe for its employees. In the current context, there is
every reason, from a business, personal and ethical point of view, for an employer to
extend the protective net to those whose dealings with the company demand their
attendance at the company's premises. Once the type of allegations under review here had
been brought to the attention of [the employer] the company would have been failing in
its duties to its own employees as well as those who dealt regularly with [the grievant]
had it not initiated an investigation, and subsequent disciplinary action.'
(At 140.)
After considering all the facts and circumstances of the matter the arbitrator decided that
dismissal was too harsh a sanction and ordered the company to reinstate the grievant. It is
interesting that in reaching this decision the arbitrator took account of the absence of a
clear policy, and an educational process to accompany it, on the part of the company as a
mitigating factor in the grievant's
1994 ILJ p500
favour. The arbitrator clearly considered this a very significant factor as he made the
grievant's reinstatement conditional upon the company issuing an internal circular to all
its employees at two of its Cape stores and all the representatives of outside suppliers
who called at those stores. The suggested wording of that circular was given as follows:
'SEXUAL HARASSMENT
In disciplinary proceedings conducted during May and June, the company found a
senior member of management guilty of sexual harassment of an outside supplier as a
result of which it dismissed this employee. The conduct complained of consisted of
physical sexual contact of short duration in the workplace which was unwelcome in the
eyes of the recipient. An outside arbitrator confirmed the finding of guilt on the charge of
sexual harassment, but found the sanction of dismissal too harsh in the circumstances.
The employee has thus been reinstated in his position, but is subject to a final
written warning in respect of such conduct for one year from the date of reinstatement,
and a financial penalty. The publication of this notice to all employees and outside
suppliers is part of the arbitrator's award, and is intended to emphasize the seriousness of
the offence of sexual harassment, and that the reinstatement in no way condones such
misconduct.'
(At 143-4.)
The arbitrator devised a creative solution to the dispute before him. What influence his
decision will have on future developments remains to be seen. The decision does
however highlight the need for employers to take the appropriate steps to deal with sexual
harassment fairly and effectively as they do with other types of serious misconduct.