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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

5. Factors to establish sexual harassment


5.1 Harassment on a prohibited ground


5.1.1 The grounds of discrimination to establish sexual harassment are sex, gender and sexual orientation.


5.1.2 Same-sex harassment can amount to discrimination on the basis of sex, gender and sexual orientation.


5.2 Unwelcome conduct


5.2.1 There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.


5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.


5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.


5.3 Nature and extent of the conduct


5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct. Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip search by or in the presence of the opposite sex. Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person's body made in their presence or to them, inappropriate enquiries about a person's sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text. Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.


5.3.2 Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism. Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances. Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances.


5.3.3 A single incident of unwelcome sexual conduct may constitute sexual harassment.


5.4 Impact of the conduct


The conduct should constitute an impairment of the employee's dignity, taking into account:

5.4.1 the circumstances of the employee; and
5.4.2 the respective positions of the employee and the perpetrator in the workplace.