SEXUAL HARASSMENT IN THE WORKPLACE AND THE LAW
The workplace is a place where many activities take place. These activities may be harmful to both men and women depending on behavior that is portrayed by different individuals and how it is viewed by the recipient. Sexual harassment is conduct that may affect especially women in the workplace and in this article I will explore what sexual harassment is, the law regulating such conduct and how it affects women particularly. Sexual harassment comprises a range of behavior from verbal teasing to conduct that is criminal, for example criminal assault. It is generally associated with requests for sexual favors, sexual advances or other sexual conduct when giving in is either directly or indirectly a condition affecting decisions; the behavior is of a degree that creates an intimidating or uncomfortable environment for the victim; or the harasser continues with such behavior despite objection from the victim against whom it is directed. Sexual harassment may occur in many social settings. For purposes of this discussion reference will be made only to sexual harassment in the workplace.
Under national law, Section 24 of the Constitution is an aspirational provision of the right to work. In light of this provision section 65 confers labour rights on every person and refers directly to the right to fair and safe practices and standards. By its definition, an act of sexual harassment constitutes a violation of the constitutionally protected right to fair labour standards and also violates the right to full and equal dignity. The right to fair and safe labour standards is realized under the provisions of the Labour Act [Chapter28:01] whose primary purpose is regulation of the employer-employee relationship. The Act narrowly defines sexual harassment through inference from section 8(h) which provides for unfair labour practices. Under this provision, engaging in unwelcome sexually determined behavior towards an employee, whether verbal or otherwise, such as making physical contact or advances, sexually colored remarks or displaying pornographic material in the workplace constitutes commission of an unfair labour practice. Although this definition does not explicitly provide for sexual harassment, the conduct it describes is actually sexual harassment. Sexual harassment comes under the ambit of unfair labour practices and the prescribed penalties are cessation of the practice of sexual harassment, compensation for such acts and criminal sanctions against the perpetrator. However, all the prescribed remedies are somewhat insufficient in that, firstly, there is no formula for calculating the amount of compensation in relation to the harm done; secondly, the remedies do not address the psychological harm experienced by the victim through recourse to rehabilitative services; and lastly there are no mechanisms to prohibit punishing action by the perpetrator and/or his or her sympathizers in the future.
For employees in the public service, section 4 of the Public Service Regulations S.I 1 of 2000 provides for ‘discourteous behavior’ during the course of duty to include sexual harassment. In the context of the Regulations discourteous refers to rude, ill-mannered or impolite behavior. The Regulations do not specifically define sexual harassment but put it in association with prohibited and unacceptable conduct. However, in this context sexual harassment is demeaned to mere misconduct and is not treated with the gravity with which it bears. The law in this instance also falls short in prescribing specific procedures to remedy such conduct including the need for investigations, hearings and counseling for victims of sexual harassment.
Practical lessons for implementation within the Zimbabwean jurisdiction can be learnt from South Africa with its Employment and Equity Act 55 of 1998 Code of Good Practice: Sexual Harassment wherein entities are encouraged to put in place policies to deal with sexual harassment and those policies be effectively communicated and understood by all employees. In addition, because of the exclusive nature of the Code it has sufficient content and clarity to be used as a guideline in instances of sexual harassment.
Under international law, particularly the Convention on the Elimination of All forms of Discrimination Against Women, ‘discrimination against women’ is defined as any distinction, exclusion or restriction made on the basis of sex with the net effect that women do not enjoy their human rights on an equal basis with men in any sphere of life. Discrimination against women includes gender based violence, that is, violence directed against women because they are women or that affects women more than men. Sexual harassment affects women more than men because while sex is a major determinant in sexual harassment, the socially ascribed roles of women also play a significant part to compound the effects of harassment. Sexual harassment may be humiliating and may constitute a safety problem if a woman does not feel safe in her workplace. It is discriminatory when a woman has reasonable ground to believe that her objection to sexual favors, conduct or advances would disadvantage her in any social setting, for example, through potential loss of employment or more severe physical abuse. A broad and dynamic, purposive human rights approach takes sexual harassment as an instance of oppression in which people may experience exploitation, marginalization, powerlessness and violence. Consequently, the right to equality and non-discrimination against does not only encompass factual unequal treatment on the basis of sex and other prohibited grounds but also protection against sexual harassment and violence. The State has an obligation under international law to respect and protect the right to equality and non-discrimination between men and women. This includes putting in place legislative measures to protect citizens against the incidence of all kinds of violence, including sexual harassment, in everyday life.
In conclusion, as far as equality and non-discrimination in relation to sexual harassment is concerned, it is important to note that the legislature has made strides in addressing the issue by enacting laws that speak to sexual harassment directly or indirectly. However, more needs to be done in terms of recognition of sexual harassment as a violation of the right to equality and non-discrimination as well as a unique kind of unfair labour practice or violence and remedies proposed accordingly if any substantial justice is to be achieved. Hopefully, this will be addressed by the Zero Labour Draft Bill which, if passed, will explicitly define what sexual harassment is as well as the acts excluded from its scope. This is hoped to help curb the fluid nature of conduct and acts of sexual harassment as it is understood and applied. Moreover, sexual harassment policies must be tailored to the workplace so that differences in work environment may be accommodated.
Written by: Geraldine Tendai Kabaya
Zimbabwe Women Lawyers Association (ZWLA)
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