Sexual Harassment Law Will Demand Greater Employer Vigilance
The Sexual Harassment (Protection & Prevention) Act is all but ready for rollout. The most recent directive from the Minister with responsibility for the coming into effect of the law is that employers should get ready because it is only a matter of time before the sexual harassment law comes into force. The proposed sexual harassment law primarily targets institutions such as schools, correctional & medical facilities and the workplace. For this article, we will focus on the workplace.
The implementation of the sexual harassment law will cause a seismic shift in how we interact in the workplace. The lasting aftershock will be that the law demands more vigilance on the part of an employer to protect its staff and create a workplace free from sexual harassment.
What is Sexual Harassment?
Sexual harassment is defined under the new law to mean the making of any unwelcome sexual advance towards a person by another which is regarded as offensive or humiliating by the persons towards whom the sexual advance is made or has the effect of interfering with work performance or creating a hostile work environment. A sexual advance is broadly defined under the proposed law and can range from the use of sexual slurs to physical contact of a sexual nature.
Who is a Worker?
A worker is defined to include a contractor, an apprentice, a trainee, an intern and even a volunteer. In other words, a sexual harassment complaint can be made by or against any of these persons.
This new law will place a greater duty on an employer to create a workplace free from sexual harassment. The employer will now have a duty to take every reasonable effort to ensure that the workers employed by that employer are not sexually harassed in the course of their employment. Every employer, subject to certain exceptions, will be required to have a written sexual harassment policy within 12 months of the coming into force of the sexual harassment law.
Under this new law an employer will now be required to notify the person against whom a sexual harassment complaint is made in writing within 2 days of the employer’s receipt of the complaint. The internal investigation into the complaint must begin within 14 days of the complaint being made and completed without delay.
The law proposes to establish a Sexual Harassment Tribunal that will hear and determine sexual harassment complaints. A person who alleges that an employer has failed to comply with its duty under the law may make a complaint in writing against that employer to the Sexual Harassment Tribunal.
The law also allows for designated officers appointed by the Minister with responsibility for Gender Affairs who are tasked with the responsibility of ensuring the proper observance and compliance with the sexual harassment law. These designated officers can also be instructed by the Sexual Harassment Tribunal to carry out an investigation into a complaint made to the Tribunal against an employer.
Employers will have to exercise greater vigilance in handling complaints of sexual harassment. Complaints of sexual harassment are usually not black and white or clearcut and can be nuanced. Of course, an employer tasked with the duty of protecting its employees from sexual harassment must also keep in mind that the establishment of the Sexual Harassment Tribunal does not obviate the obligations on that employer to abide by the Labour Relations Code. A worker who is accused of sexual harassment is therefore entitled to due process. In other words, the employer is required to give the accused a fair hearing while at the same time ensuring it discharges its duty to the worker who complained of the sexual harassment.
Greater vigilance will be required of HR professionals to protect an employer from a claim that the employer failed to comply with its duty under the sexual harassment law as well as to protect the employer from a claim by the accused worker that he was not afforded a fair hearing.
Jahmar Clarke is an attorney at Myers, Fletcher and Gordon and a member of the Firm’s Litigation Department. He may be contacted at email@example.com or through the Firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.