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THE EMPLOYER'S DUTY TOWARD SEXUALLY HARASSED WOMEN: An overview of the Ntasbo and Grobler Judgments SASLAW PRESENTATION
By: Nikki Naylor Women's Legal Centre March 2004

INTRODUCTION Bongiwe Ntsabo is a young South African woman who grew up in Khayelitsha. Her socio-economic circumstances could be described as

epitomizing the black South African reality. She was born in 1970 her mother a domestic worker and her father deceased. The closely-knit Ntsabo family support each other and look out for each other always trying to better themselves. Bongiwe is youngest of four siblings. In 1993 on the eve of democracy in South Africa, Bongiwe completed standard nine and the year thereafter she fell pregnant and dropped out of school.

So began her search for employment, which took her six long years bearing in mind that she had a young son to support. She relied on her mother and particularly her brother who was running a taxi business for support in this period. And then she obtained a position as a security guard. Having

completed the security guard training Bongiwe was very proud to be in her uniform and to be part of a society earning a living. It was not disputed during the trial that Bongiwe had managed to obtain the job through the assistance of her family and her sister-in-law who was a nurse at one of the Hospitals connected with Real security. Her time at Real Security was predominantly spent at Khayelitsha Day Hospital where she worked a 12-hour shift. She was an unarmed security guard and was responsible for searching women who entered the hospital.

Bongiwe started her career as a Security Guard on 4 June 1999 and resigned in January 2000 at which time she was earning R1,000 per month. In June

2 2000 she launched an application in the Labour Court in Cape Town having exhausted the remedies provided in terms of the CCMA. Bongiwes long walk to freedom from sexual harassment starts here.

Her case goes something likes this: From the beginning of October 1999 Mr. Dlomo her supervisor started sexually harassing her. The sexual harassment really started with him asking her out on dates then progressed to him touching Bongiwe on her breasts, thighs, buttocks and genitals. I pause here to state that Bongiwe is a very shy woman she is not very assertive. She became more and more

uncomfortable, she told him that she was uneasy and not interested in him but the harassment continued. Dlomo would ask her to engage in a relationship and when she refused he would threaten her with a poor work performance report. This went on until December 1999.

Bongiwe went to report these incidents to Mrs. Fisher (Mr. and Mrs. Fisher are the owners of Real Security). She told a colleague, Christopher Nashwa

whom she traveled home with on the train and he also told her to tell Mrs. Fisher. Mrs. Fisher then said that she would investigate the matter. Nothing happened. Mr. Themba Ntsabo Bongiwes brother took charge and also reported the matter to management by telephoning them and telling them what was happening. Nothing happened.

Things simply got progressively worse for Bongiwe Ntasbo. A meeting was then called on 14 December at the office in Mitchells Plain where it was put to Bongiwe that Dlomo had complained about her poor work performance. Bongiwe responded that she had already reported to the

company that Dlomo had been sexually harassing her. Mrs. Fisher did not believe Bongiwe, after all Mr. Dlomo was a well-respected supervisor who did not drink/smoke and had been employed there for longer than Bongiwe. A despondent Bongiwe then tried to make contact with the union and despite promises that they would investigate the matter, nothing happened.

3 On 15 December 1999, Bongiwe was in the guardroom having her lunch when Dlomo came in and closed the door. She assumed that he was closing the door to put away his firearm in the safe. Dlomo carried a firearm on duty. Instead of putting the gun away he places the gun on the table and tells Bongiwe that he will shoot her if she screams. He then proceeds to grope her breasts and pushes his erect penis against her skirt whilst holding her down. A simulated sexual act occurs and he ejaculates on her skirt. He threatens to kill her if she tells anyone.

Bongiwe is unable to go back to work after this and sits outside the guardroom crying and ties her jersey around her skirt to hide her semen stained skirt. The humiliation and helplessness she must have felt at that moment we can only begin to comprehend. Here we have a security guard who finds herself attacked not by an intruder but by her supervisor and finds herself unable to protect herself.

When she gets home she tells her mother and her brother and a family meeting is called. They telephone the office of Real Security and again

complain. Everyone expected that some sort of enquiry would be convened and the family decide that Bongiwe should return to work as the family needed the money. On 24 December 1999 Dlomo tells Bongiwe that she is being transferred to another site. In January she is moved to M.P Day

Hospital but on 17 January she is then told she will have to work night shift. Bongiwe advises Mrs. Fisher that she is unable to work night shift and why had they not sorted out the problem with Dlomo because had they done so she could continue with her work at Khayaletsha Day Hospital as before. Mrs. Fisher then tells Bongiwe if she cant work the night shift then she should resign. Bongiwe writes a letter of resignation quoting Dlomo as the reason for resignation and the sexual harassment. Mrs. Fisher tears up this letter and tells her to re-write the letter if she wants a good reference from the Company. Bongiwe, despondent and dejected re-writes the letter and leaves.

4 Later she returns to collect her deposit for her uniform and takes her brother with her. At the office an argument breaks out and Bongiwe and her brother are called kaffirs and told to leave the premises immediately. The consequences for Bongiwe are not isolated she starts having trouble sleeping, her relationships with her son and mother deteriorate, she is afraid to go out, is afraid of men in uniforms and security guards, her partner terminates the relationship suggesting that she must have done something to make Dlomo do this to her. Having lost her job, her relationship and feeling completely helpless she becomes suicidal and it is only as a result of a family meeting that she finds herself at WLC offices. The family and her brother decide she needs to take charge and see a lawyer.

In the time leading up to the trial and during the trial Bongiwe was in and out of psychiatric hospitals diagnosed with PTSD and depression. One also needs to bear in mind that this happened in December 1999 and today in March 2004 Bongiwe is still at home, unemployed working once a week as a domestic worker and trying to pick up the pieces. Bongiwe never wanted or longed to be a domestic worker, in fact she did not want to follow the vocation of her mother and had chosen to become a security guard. Today she has little choice. That context should not be forgotten or disregarded when we consider the impact of the judgment. Lawyers have the mistaken belief, no its a bad habit, we mistake the law and the Constitution and judgments for the real world. What happens in the CC and Labour Courts of South Africa are important BUT they are not determinative of social reality or the social realities which complainants, applicants and plaintiffs find themselves in. The matter is going on appeal and the monetary award is therefore suspended and hence Bongiwe waits patiently for the wheels of justice to turn.

In South Africa we need to acknowledge that for a long time, particularly in the period prior to 1994, sexual harassment was not only allowed but was also legally unthinkable. Working women in all sectors had to grapple with the social and legal failure to recognise sexual harassment as an abuse at all.

5 Today in 2004, in South Africa we can see that the systematic silence enforced upon women is beginning to be broken. Sexual harassment has now found its way into our legal terminology, our courts, our legislation and our newspaper headlines. However, as I have already stated it is important for us never to assume that legal gains will amount to real change in the lives of women and in the power dynamics which women have to face within the workplace.

I turn now to deal with the some of the positive legal steps and advances made and in this regard, I would like to consider the relief sought in Bongiwes case and why it was important to hold Real Security liable and found liability on Section 60 of the EEA. I am also going to touch on the case of Sonja Grobler, judgment handed down on Friday, 19 March 2004 in the High Court, which I must admit is very long and I have only managed to consider it at a very superficial level today.

Turning to the Ntasbo decision in the first instance it was argued that Bongiwe's resignation amounted to a constructive dismissal and since the "intolerable circumstances" which she found herself in were based on sexual harassment this constituted an automatic unfair dismissal entitling her to maximum compensation of 24 months.

The second leg of the claim was based on the Employment Equity Act Chapter II and Chapter IV. Chapter II seeks to eliminate unfair discrimination in the workplace and places a duty and obligation on employers to eliminate sexual harassment. Section 5 places a positive duty on an employer to ensure that the workplace is free from unfair discrimination. Section 6 of the Act prohibits unfair discrimination on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Section 6 is not restricted to employers and employees but includes coworkers. Sexual harassment is specifically defined as a form of discrimination

6 on one or more of the above grounds and is now expressly forbidden in terms of section 6(3) of the Act.

In terms of the LRA, Schedule 7(2)(1)(a) no provision was made for an employer to be held liable for acts committed by an employee as against a fellow employee. However, the failure to take appropriate action could lead to a grievance been lodged and a claim of constructive dismissal where the person harassed elected to resign as a result of the intolerable situation within which she finds herself. The employer would then be held responsible on the basis of constructive dismissal. In terms of the LRA the fact that an employer had no policy in place would not be actionable in itself. Any action was

therefore limited and only available where an employee elected to resign as a result of the employers failure to take action. The onus would then be on that employee to show that she was forced to resign due to the intolerable circumstances within which she finds herself in.

The mere fact that the employer had failed to discipline the harasser and the fact that the employer had no policy in place would be insufficient, she would have to link this to her grievance and an ULP or the intolerable circumstances of her employment and show that she had attempted to exhaust her internal remedies prior to resigning.

Today, in terms of the EEA it is not enough for an employer to simply take steps to eliminate unfair discrimination in the workplace. There is a further duty and obligation on an employer to investigate complaints and allegations of unfair discrimination (for example an allegation of sexual harassment would HAVE to be investigated). Whilst the Code provides the most detailed guidelines insofar as how to investigate and deal with claims of sexual harassment it should be borne in mind that the Code was not drafted with the overall purpose of the EEA and section 6 in mind, instead it was published in terms of Section 203 of the LRA. Therefore the status of the Code is that of a mere guide. It is not binding law

7 and whilst the EEA requires that it must be taken into account when interpreting the Act, it need not be followed.

The duty of employers is further elaborated on in Section 60 of the EEA, which was also the basis of Bongiwe's claim. In terms of section 60(1) [i]f it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in conduct that, if engaged in by that employees employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer. It should be noted that the conduct needs to be brought to the attention of the employer and thus there appears to be a duty on the harassed employee to raise the conduct with the employer. It does however, appear in the light of Pillay's finding in Ntsabo that the harassed employee need not do so herself and she may approach a friend / colleague to do so on her behalf. He

interprets the word bearing in mind the context of sexual harassment and accepts that the word immediately be interpreted to mean as soon as is reasonably possible. This has the implication that the failure to report the incident immediately should not prejudice the employee who has been harassed and should not be used by an employer as a defence. The power dynamics in cases of sexual harassment should be noted and a report, which is delayed, should be viewed in this context. The delay should be looked at in terms of whether or not it has been as a result of deliberate dilatoriness on the part of the harassed employee and whether or not there is a reasonable explanation for the delay. Often women try to first negotiate with the harasser by pleading with him to stop and only proceed to take action as matters become progressively worse.

Section 60(2) provides that when an employee is subjected to sexual harassment and where such conduct is brought to the attention of an employer, the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct. This allows the employer to take steps to remedy the situation and it is only in the event that an employer fails to take any steps or fails to take reasonable steps that liability will arise. The implication is that an employer can be held liable for instances

8 where he/she fails to take steps to prevent discrimination or fails to investigate allegations of discrimination.

Section 60 (4) provides further that an employer may escape liability if it can show that it has done all that was reasonably practicable in the circumstances. Therefore it appears that the Act will only hold an employer vicariously liable where: The harassment is brought to the attention of the employer; Immediately; The employer fails to consult all parties; and Fails to take the necessary steps.

An employer may also raise, as a defence that it did all it reasonably and practicably could do in the circumstances.

In Bongiwe's case the Labour Court had to grapple with not only section 60 but also the relief sought in terms of Section 50 of the Act in terms of which Bongiwe claimed damages for both patrimonial and non-patrimonial loss. Patrimonial damages were claimed to compensate her for the medical costs of psychological counselling. Non-patrimonial damages were claimed to compensate her for the injury to her feelings and personality, the impairment of her dignity and her pain and suffering.

Acting Justice Pillay first had to deal with the conflicting versions before the Court. It was argued that the sexual harassment had never occurred and that Bongiwe was a poor worker that had fabricated this claim as a result of not being able to cope with her work. The argument was thus not around a consensual sexual act but that no act had ever occurred. The Court accepts that the case depended on probabilities and credibility and deals with all the evidence before rejecting the version of the Company. Pillay finds that the witnesses presented on behalf of the Company were untruthful and not credible. Acting Judge Pillay accepts that on a balance of probabilities the

9 sexual harassment had occurred and had been reported to the Company who did nothing to alleviate or deal with the situation. Having accepted this

version of Ms Ntasbo and her witnesses the Court then had to deal with the the liability of the employer for the acts of the harasser.

It was argued on behalf of Bongiwe that it would be incorrect to import into Section 60 of the EEA the common law principle governing the liability of an employer for the wrongful acts of an employee, where the focus would be whether the actions were committed "in the course and scope of employment" or whether the employee was "on a frolic of his own" at the time. Where someone commits an act of rape / sexual harassment he will NEVER be acting within the course and scope of his employment and thus the wording in section 60 is not without significance since it refers to "while at work" as opposed to "in the course and scope of employment."

It was argued that the matter should be dealt with as one of discrimination and the duty of an employer to eliminate all forms of discrimination and take steps to investigate and act in terms of allegations of sexual harassment. The Court accepted this argument with Acting Judge Pillay finding that Section 60 of the EEA creates a form of vicarious liability for employers where an employee sexually harasses a co-employee at work. The Court held that since Real Security had been notified of the sexual harassment and took no steps to protect Ms. Ntsabo the company would be liable for her damages.

In terms of the dismissal of Bongiwe the Judge finds that she was constructively dismissed and that she is entitled to the maximum compensation in terms of Section 186(1)(e). He finds that the fact that the employer failed to address Bongiwe's concerns made her life intolerable and thus it was primarily a constructive dismissal claim and did not fall within the confines of Section 186(1)(f) namely an automatically unfair dismissal. He finds that the resignation was not as a result of the discrimination. It is

submitted that the Judge erred in this regard by trying to restrictively draw a line between the acts of sexual harassment and the inaction of the Company. These should have been viewed cumulatively.

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It is significant that as the judgment goes on the Judge then goes on to characterize the sexual harassment as a form of discrimination and makes a finding that Bongiwe was sexually harassed and that this amounted to discrimination in terms of the EEA and then considers what relief she is entitled to in terms of Section 60 and 50. It is submitted that he should have also found an automatically unfair constructive dismissal and awarded 24 months.

Having erred in his assessment of the dismissal provision the learned judge does however correctly contextualise the EEA and its purpose. He states :

"The spirit of the EEA imposes a duty on all employers to protect its employees against offensive conduct. The failure to do so is a disregard for the law. In this case it was not only a disregard for the law, but an unacceptable invasion of the applicants privacy and a violation of her constitutional rights. I can only imagine, as best I can what women must feel when their bodies are so violated by sexual attackers. I do not limit this only to sexual attackers but I think an attack motivated by sexual lust is worse. Society has clearly rejected this type of behaviour and the law makers have recommended, through the EEA, measures to be adopted in educating everyone involved in employment to rid ourselves of this scourge."
In Ntsabo the Company elected to align itself firmly with Dlomo and did not distance itself from Dlomo's version, Dlomo was in fact the Company's main witness, which also weighs heavy with the approach of Pillay AJ. This is not a case where the Company took reasonable steps to investigate, convene and enquiry or take any steps, instead the company simply elected to align itself squarely with Dlomo.

Lets now consider the case of Sonja Grobler.

11 SONJA GROBLER CASE Like Bongiwe 1999 was not a good year for Sonja Grobler, a secretary at Naspers. Moving away from the dark guard room of Khayaletsha day

Hospital to the corporate office of Naspers and the corporate environment there we note that we are more alike than we are different and the experiences and patterns in sexual harassment are often very similar. Here Sonja Grobler is sexually harassed by Gasant Samuels, the blue-eyed boy of the MD of the Company (like the highly regarded Dlomo who does not drink or smoke). Samuels is the AA candidate at Napers set to attain amazing heights yet he displays a pattern of sexually harassing women like Sonja and others in her position. Like Dlomo he starts by asking women on dates, this

progresses to touching and in an uncanny fashion like Dlomo he threatens women with a poor work performance or promises them "greater things" should they succumb to his advances. Women recognising his position and authority in the Company choose to reject him and move on rather than take action. We must also bear in mind that Naspers unlike Real Security had a Sexual Harassment Policy in place and grievance procedures which could be invoked and which Sonja and the other women knew about.

In the case of Sonja Grobler Mr Samuels uses the same modus operandi as before and proceeds to harass her and this culminates in a threatening incident involving a fire-arm and an attempted rape. He makes her life at Naspers miserable. She complains to at least two managers but to no avail. She becomes progressively more depressed, suicidal and is diagnosed with PTSD. Experts advise that the lack of support from management exacerbates her condition as was the case with Bongiwe. Like Bongiwe her relationships are affected, she is afraid of men, she has sleepless nights and nightmares. Like Bongiwe she needs to be hospitalised and placed on anti-depressants.

During trial (unlike Dlomo who denies the sexual harassment) Samuels alleges a consensual sexual relationship between them. Also, unlike Ntsabo here the Company does take disciplinary action resulting in Samuels dismissal. Judge Nel finds as a fact that Samuels was responsible for the condition within which Sonja found herself. Much is made of the previous

12 marital problems Sonja had experienced and the financial difficulties they found themselves in - as in Bongiwe's case where it was argued that her depression was really about her boyfriend leaving her and her financial situation and not as a result of the sexual harassment.

An interesting strategy adopted here by virtue of approaching the High Court was that the liability could be founded on the general notion of vicarious liability which is not what was argued in Ntasbo. No reliance is placed on the EEA or discrimination at all.

In dealing with the liability of the employer it was argued that the employer had a duty to create a safe working environment for employees and that there was sufficient connection (genoegsame verband het bestaan tussen die werksaamhede van Samuels en sy seksuele teistering van sy sekretaresse om Naspers as werkgewer regtens aanspreeklik te maak). Naspers argued that there was no vicarious liability, which could be imposed in circumstances such as these. Here the argument of the course and scope of employment was raised and hence it was argued that Naspers could not be held liable. In particular, it is well-established that the master is not responsible for the private and personal acts of his servant, unconnected with the latter's employment, even if done during the time of his employment and with the permission of the employer. The act causing damage must have been done by the servant in his capacity as servant and not as independent individual. The argument therefore went along the lines that Samuels was never and could never have been authorised to commit acts of sexual harassment. This argument would be a correct application of the law of vicarious liability. Samuels was not acting in furtherance of Naspers' objectives since he had no express or implied authority to act in the manner in which he did

Ultimately, Judge Nel finds that the rule of vicarious liability is not a fixed rule but based on public policy considerations and subject to reformulation in order to reflect the changing social and economic circumstances of the time. He relies on the jurisprudence in USA and Canada in this regard in relation to vicarious liability in the context of sexual harassment. He finds that one need

13 not confine oneself to semantic limitations in terms of "scope of employment" and "mode of conduct" but the focus should rather be whether the conduct complained of is sufficiently related to the conduct authorised by the employer to justify the imposition of vicarious liability. There must be sufficient

connection between the creation / enhancement of a risk and the wrong that accrues from it - even if unrelated to the employer's desires. In considering sufficiency of connection factors to consider will be:

the opportunity that the enterprise afforded the employee to abuse his/her power the extent to which the wrongful act may have furthered the employer's aims extent of power conferred on the employee in relation to the victim the vulnerability of potential victims to wrongful exercise of the employee's power.

Fairness also has an important role to play in considering the prevailing policy considerations. Applying the aforegoing Judge Nel finds that Naspers can be held vicariously liable. He adds that even if this is incorrect - in terms of Section 39(2) he is obliged to develop the common law in line with the Constitution bearing in mind principles of equality, dignity and freedom. What is concerning is that Judge Nel does not contextualise sexual harassment as a form of discrimination or approach the matter on this basis in his lengthy 144 page judgment.

Of interest was the allegation that if Sonja could prove that the harassment led to PTSD then her claim would have to be dealt with in accordance with the Occupational Health and Injuries Act. Judge Nel had to consider whether sexual harassment fell within the scope of "accident" as defined in Section 1 and finds that it was not the intention of the Legislature to include sexual harassment in such cases bearing in mind the fact that it is often not a once off incident but that sexual harassment often endures over a long period of time and Section 43 and 44 of the Act made provision for prescription. Pillay

14 AJ also had to deal with this argument in the Labour Court in Ntsabo and finds that to find the sexual harassment fell within the ambit of the COIDA was too remote. The sexual harassment was outside of the scope of employment and did not arise as a result of the conditions listed in Schedule 3 of the Act. Judge Nel rejects argument to the effect that the matter should have been before the Labour court based on the Wolfaardt decision.

Sonja's claims for past loss of income, future loss of income, past and future medical expenses are all allowed. It is submitted that the construction of employer liability and the attempts to fit it into the traditional model of vicariosu liability have been stretched in this case. Judge Nel should have

acknowledged that the traditional delictual test did not cater for situations such as Sonja's as was argued by Naspers BUT then he could have gone on to assess whether in terms of S39(2) the test needed to be reformulated and developed in line with the Constitution. His Constitutional analysis is devoid of any real context and does not grapple with the development as envisaged by our CC and SCA in the Carmichele decision for example. He could have used these decisions and the manner in which the " duty of care" concpet was developed in order to develop the vicarious liability standard. Reference to the equality clause in the Constitution and the EEA as an embodiment of Section (9)(2) would have also been useful in terms of ellucidating the changing boni mores and policy considerations. Whilst a correct result was reached the legal reasoning may have left some gaping loopholes for future jurisprudence in the context of vicarious liability.

So how should we consider employer liability in future cases?

I would like to argue that employer liability should be founded on the same principles enunciated in the Canadian decision of Robichaud v Canada (Treasury Board).1 In this case Mrs Robichaud filed a sexual harassment complaint against her employer, the Department of National Defence on the basis that her supervisor had sexually harassed her. The Human Rights

[1987] 2 SCR

15 Tribunal, on appeal, found that she had been sexually harassed and that the Department was strictly liable for the actions of its supervisory panel. An appeal was lodged and the issue before the Supreme Court of Appeal was whether or not an employer is responsible for the unauthorised discriminatory acts of its employees in the course of their employment under the Canadian Human Rights Act.

In terms of Section 7(b) of the Human Rights Act, it amounts to a discriminatory practice (directly or indirectly) to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Since it was accepted by the parties that sexual harassment constituted discrimination on the basis of sex the Court only needed to consider whether such actions could be attributed to the employer. In doing so, the Court considered the purpose of the Canadian Human Rights Act as a whole in the context of employer liability. In this regard it held as follows: Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, the motives or intentions of those who discriminate are not central to its concerns. Rather the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence. Theories of employer liability developed in the context of criminal or quasi-criminal conduct are therefore completely beside the point as being fault oriented. The liability of an employer, too, ought not be based on vicarious liability, as developed under the law of tort, which was confined to activities done within the confines of a person's job, but rather in terms of the purpose of the Act The Act is concerned with the effects of discrimination rather than its causes (or motivations): only an employer can remedy undesirable effects and only an employer can provide the most important remedy--a healthy work environment. The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, supports making the Act's carefully crafted remedies effective. If the Act is to achieve its purpose, the Court must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.2

Ibid - headnote

16 In future cases it is submitted that in applying the Section 60 of the EEA, the Court should adopt a similar approach bearing in mind the similar purpose of the EEA as compared with the Human Rights Act in Canada. This means that following factors would need to considered by the Court when considering employer liability:

An employee would need to have brought the harassment to the attention of the employer. This could be via an intermediary, human resources official, colleague or friend.

A failure to report an incident of sexual harassment immediately, provided that the delay is not mala fide or an indication of deliberate dilatoriness should draw no negative inference. This takes into account the fact that often a woman is unable to report the harassment due to the hostile environment within which she finds herself. By interpreting the provision

in such a light the power dynamics at play in cases of sexual harassment are taken into account.

It is already well accepted that the root of sexual harassment is generally not sexual attraction but the desire to assert power over an individual. 3 Just as rape (sexual harassment in its extreme form) is seen as a crime of violence and not sex, sexual harassment needs to be contexualised in the same fashion.

Once the harassment is brought to the attention of the employer, the employer would then have to take all necessary steps to address the issue and consult with all parties. The wording in the Act is peremptory and a failure to do so would justify an employer being held liable. Whether the steps are sufficient and what would be construed as necessary should be interpreted alongside the Code of Good Practice bearing in mind its overriding intention and purpose.

MacKinnon C, above note 1

17 It is submitted that the onus would ordinarily be on the employer to show the reasonableness of steps taken, unless the aforegoing presumption applies. In the latter event an employer should not be afforded any

protection under Section 60 (4).

A failure to act timeously should similarly be seen as a failure to act.

The need for a fair investigation should be adopted by our Court in assessing whether the steps taken were reasonably practicable in the circumstances. Fairness should be the criterion in order to prevent an employer from going through the motions of a consultation, disciplinary enquiry in terms of the Code, only to find the perpetrator not guilty and thereby further victimise the employee who has been harassed. The Court should be allowed to look beyond the steps taken and closely scrutinise the actions of the employer in order to assess its fairness. This would, of necessity, mean that the factual issues would need to be revisited and the finding of chairperson(s) at a disciplinary level.

What about the case where an employee has not raised this aspect herself, but a hostile environment has been created in the workplace and a reasonable employer ought to have known that the conduct in question amounted to discrimination, the employer should still be held liable. For example, if pornographic posters depicting violence against women were put up along all the corridors at the office, management would need to take steps to eliminate and eradicate the material and educate staff in relation to violence against women and sexual harassment, irrespective of whether or not an employee lodges a grievance. A failure to do so and to take steps should lead to an employer being held liable. This would be a reformulation of the strict liability approach, which has been followed in the jurisprudence of the United States4 and in Australia.5

Faragher v City of Boca Raton, 118 S.Ct. 2275 (1998), Burlington Industries v Ellerth, 118 S.Ct. 2257 (1998)

18 Ultimately the purpose and objectives of the EEA should be the primary focus when addressing employer liability. Since sexual harassment is regarded as a form of unfair discrimination, our Courts should interpret any defence raised by the employer in the strictest possible manner thereby placing a duty on all employers to ensure that their workplaces are free of sexual harassment and that employers take reasonable steps when faced with a complaint of sexual harassment.

CONCLUDING REMARKS Sexual harassment claims are often perceived or labelled as an agenda for women seeking revenge and blackmail. Often the media label the woman who has been sexually harassed as someone "out to get" her employer. In addition, she is referred to as a "tease" or someone who cannot cope with office politics or a bad sport who stifles the office environment by not being able to take "a joke."

These views and stereotypes have played themselves out globally and more recently within the American context. Deborah Zalesne6 points out that in the USA sympathy for women bringing suits is low as people have become less concerned with the problem of sexual harassment and more concerned with the problems associated with false accusations and the victimization of men.7 She argues that advocates of sexual harassment law face new obstacles as hysteria mounts surrounding the question of liability with a common perception that "charges of harassment are made so carelessly and on such slight grounds that we now have a genuine witch huntwhere every man stands accused if he's ever been alone in a room with a woman."8

A common theme emerging from these accounts, both in South Africa and USA, is the image of a fearful, confused and powerless heterosexual male faced with a tyranny of political correctness. We must guard against any kind
5

Horne v Press Clough Joint Venture (1994) EOC 92-591; Mills v Bennet (1994) EOC 92640; R v Equal Opportunities Board & Anor [1985] VR 317 6 Zalesne D: Sexual Harassment Law: Has it gone too far, or has the media? Temple Political & Civil Rights Law Review 1999 Vol. 8 Issue 2 351 7 Ibid at 353

19 of affirmation of the sexist stereotypes that women bring false claims in order to punish innocent males. This fear of women's power of accusation is really reminiscent of the fear men have that women do and will falsely accuse them of rape. It is therefore important that one contextualises the sexually harassed woman albeit Bongiwe Ntsabo or Sonja Grobler bearing in mind power dynamics, the issue of financial dependency and job security. In this regard the plight of the financially exploited domestic worker illustrates the importance of issues such as class, race, gender and status in a sexual harassment claim. Bongiwe's long walk to freedom which started in December 1999 is still not over, leave to appeal has been granted on the limited ground of the interpretation of Section 60 and Section 50 of the EEA. Last week a petition to the LAC was filed by Real Security wherein the factual findings are challenged as well. The road appears to remain a long and treacherous one for Bongiwe Ntsabo.

For Sonja, Naspers considers its position and may or may not appeal. The length of time taken and resources allocated to the respective matters remains an important issue in the further development of sexual harassment law in this country. Whilst Grobler and Ntsabo decisions may be seen as victories, the factual matrix upon which the cases were founded, the importance of the evidence and credibility findings means that many women still have many hurdles to overcome. Perhaps a valuable lesson for all of us as activists and attorneys in the area would be that we locate our strategies within the context of the sexually harassed woman and her social environment. Here the issue of sexual harassment as a form of discrimination is imperative because in the final analysis, whilst important strides have been made in terms of the recognition of sexual harassment and the prohibition of such conduct, it is important that within South Africa we ensure that the positive steps taken legally are not reversed in a political backlash.

Ibid at 358