Sexual harassment in the workplace : a critical analysis of the unwelcome element.

Abstract

Sexual harassment is one of the most prominent forms of harassment encountered in the working world globally. This has resulted in a plethora of laws being enacted, whereby, the definition of sexual harassment was provided, and the legal remedies available to the harassed, were established. Of particular importance, regarding the laws, is the different definitions which provide the elements that need to be satisfied before the conduct of the harasser can constitute sexual harassment. The unwelcome element is apposite in almost all jurisdictions when defining sexual harassment which undoubtedly indicates the importance of the unwelcome element. However, this element is difficult to establish in practice, and there is judicial inconsistency as to whose perspective the conduct should be considered unwelcome from, namely that of the harasser or harassed. Furthermore, studies indicate that men are more likely to find sexual connotations in the responses of women, yet women often use less confrontational responses to show that the conduct was unwelcome. The above simply adds to the difficulties in the determination of the unwelcome element which is further fueled by the underdeveloped literature in South Africa on this element. Therefore, this dissertation endeavours to make a contribution to the limited knowledge in the area of sexual harassment by critically analysing and deconstructing the unwelcome element. Thus, the main objective of this dissertation is achieved through a legal comparative study to American jurisprudence, whereby the scholar, Joan Weiner, identified factors that the US courts consider in the determination of whether the conduct of the harasser was unwelcome. The relevance of these factors, in the determination of the unwelcome element, were compared and contrasted to South African case law. The findings from the analysis conducted revealed that even though these factors are seen by courts as an attempt to ensure that liability without fault is not attributed to the harasser, especially where sexual harassment is dealt with as a misconduct, the unwelcome element essentially acts as a roadblock to the harassed in sexual harassment cases. This element is used by harassers, as a defence, to show that the harassed’s conduct if scrutinised closely, indicates that she was welcoming of the conduct of the harasser resulting, in courts analysing the conduct of the harassed for signals to establish the unwelcome element. The main implication is that the harassed is placed on trial detracting from the behaviour of the harasser in sexual harassment cases.