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Danny Roberts | Promote Prevention and Clear the Registry under the Sexual Harassment Act | Commentary

In a few weeks, on June 30, 2024, an important provision of the Sexual Harassment (Protection and Prevention) Act, 2021 will come into force. This provision, which is laid down in Section 4(1)(a) and (b) of the Act, requires every employer to develop a policy on sexual harassment in the workplace and ensure that this policy is brought to the attention of every employee.

Employers who fail to comply not only with the provisions of sections 4(1)(a) and (b) but also with those of section 3 of the Act face a fine of US$1 million. However, this penalty will only be imposed if the employer fails, without good cause and within a timely period, to comply with the direction of an authorized officer either to issue a policy or to demonstrate what reasonable efforts have been made to create an environment in which every employee feels safe from sexual harassment.

To understand the law, it is important to understand its fundamental purpose, which is all too often limited to imposing penalties for sexual harassment or non-compliance by employers. The law is much more than that, and sexual harassment policies should underline its essential objectives. These objectives are primarily to prevent, not necessarily eliminate, cases of sexual harassment. This is already expressed in the title of the law: The Sexual Harassment Protection and Prevention Act, which places an emphasis on the prevention of such cases. This is the objective of sections 3 and 4. Section 3 requires the employer to “make all reasonable efforts to ensure that the employees it employs are not sexually harassed in the course of their employment.” This means that the initiatives taken by the organization comply with the letter and spirit of the law and actually create an environment in which employees feel safe and secure and are not subjected to any type of sexual harassment.

The preventive side thus reveals the true intention of the law, which is to promote human rights under conditions of dignity, equality and respect. The real thrust of an improved workplace culture – which must be the goal of every organization – should be to ensure that workers always treat each other with kindness and consideration. This is the basis of an important element of the Decent Work Agenda, according to ILO research.

Studies show that more than 80 percent of all cases of sexual harassment involve men in managerial and leadership positions who harass female employees. In this context, men who are prone to sexual harassment are said to cognitively link social dominance and sexuality. This exposes the cultural norms that have shaped men’s views of women over time, but above all reinforces the perception of dominance and superiority in the organizational hierarchy. For this reason, the studies also confirm the fact that more than 80 percent of all cases of sexual harassment between and across genders occur within the context of power relations in the workplace.

PROSOCIAL BEHAVIOR

To prevent sexual harassment, as required by Section 3 of the Act, employers, through their human resources departments, must integrate sexual harassment into a new work culture that promotes prosocial behavior and cultivates the right values ​​and attitudes. This means broadening and deepening management and employee appreciation beyond the concepts of “respect” and “dignity” and understanding the need for improved productivity, increased profitability, equal treatment and employee engagement.

For employers, therefore, the conceptual framework for addressing sexual harassment must focus on the underlying causes at a systemic level. Sexual harassment must be viewed as a “cultural issue” where training “must focus on the role of cultural factors in influencing perceptions of sexual harassment in the workplace…” and the need to examine “…the role of national culture in sexual harassment and sexual harassment training.”

Therefore, to clarify the true intention of the Act, it is essential to focus on Section 3. This is why Section 8, which requires the maintenance of a sexual harassment register, defeats that intention. The Act nowhere has the intention to criminalise a person who has sexually harassed another person. In fact, an examination of Section 36, which deals with the awarding of Sexual Harassment Tribunal verdicts, calls for the ultimate punishment to be the dismissal of the person found guilty of sexual harassment. But a sexual harassment register will resemble a sex offender register, the latter of course containing the names of an offender convicted of sexual offences by a criminal court.

The requirements of a sexual harassment registry are far worse than its meaninglessness, because once your name appears on the registry, you are criminalized and stigmatized without haste but without remorse. Moreover, it may be that the offense you were “convicted” of was simply a repeated invitation to social events that the recipient found unwelcome, albeit in a respectful manner. Or, even worse, the accusation against you has turned out to be false and malicious.

Requiring HR departments to document employee misconduct is a common practice. In fact, the guidelines in the First Schedule to the Sexual Harassment Policy Formulation Act state that “all allegations of sexual harassment shall be documented and carefully archived for the purposes of monitoring and evaluation.” This makes Section 8 redundant and dangerous, and although it is specified as a mandatory instruction by the use of the word “shall,” unlike other sections, it does not provide for any penalty for failure to comply with its provision.

While Section 3 of the Act protects workers’ rights (human rights in the broadest sense) in accordance with the Charter of Fundamental Rights and Freedoms, Section 8 appears to violate, if not sullie, the letter and spirit of the Charter and should therefore be deleted.

Danny Roberts is Deputy Chair of the Industrial Disputes Tribunal and an adviser to the Minister for Culture, Gender, Entertainment and Sport on the establishment of the Sexual Harassment Tribunal. Send feedback to [email protected].