Experts interrogate HR's role in fighting sexual harassment in the workplace

A panel of experts in #MeToo webinar discusses how predatory behaviour can be stamped out.

“It is time that, as leaders of Corporate South Africa we clear our collective names and ensure that the environments we lead are safe for women.”

These are the words of Tantaswa Fubu, group executive for human capital at Barloworld, who was part of a CHRO webinar about the #MeToo movement and the role that HR should play in fighting sexual harassment and predatory behaviour in the workplace. The #MeToo movement created the opportunity for women to speak out and shattered the isolation and stigmatisation that survivors of sexual crimes often experience, with even more people coming forward to share their experiences as a result. 

In a discussion led by CHRO SA head of marketing Judith Kamffer, the webinar explored how HR professionals can create a safer workplace and help the survivors in their organisations get the justice they need. A poll of the webinar attendees revealed that 46 percent of employees felt protected and safe from different forms of predatory behaviour, while 20 percent said their companies had policies in place but did not feel sufficiently protected. Meanwhile, 20 percent said their policies only support victims of predatory behaviour and do nothing to prevent it, and, unfortunately, 13 percent said employees were not protected against predatory behaviour at all.

"I expected fewer people to say they feel protected but, even as I say that, I truly believe 46 percent is too low. If it was an exam, that would be a fail," said Tantswa. 

Tantaswa explained how she was once called in to deal with a case of sexual harassment where the victim was not believed. What amazed her about the entire debacle was not only that the survivor was not believed, but also that there was active support for the perpetrator. 

“And, to my horror of horrors, the people that were supporting the perpetrator and not believing the victim, were women,” she said.

Tantaswa attributed this to a variety of factors, not least of which is the fact the patriarchy is so entrenched in society that even women are predisposed to believe men more than women in such instances. Another factor is that, even in companies that have sexual harassment policies in place, it is very seldom that employees knew about them. Furthermore, when new employees are inducted into the organisation, it is rare that they are told anything about the company’s position on predatory behaviour and what it does to prevent and punish sexual harassment. Most importantly, the people who are supposed to deal with such cases are not trained on how to approach these kinds of issues. 

“People don't even know how to define sexual harassment,” she said, adding that people need to know that there is someone they can speak to if there is an incident. “Also, when people have spoken up, the way you treat them has to be consistent with the commitment to care for people that so many companies claim they have.”

Said Tantaswa: “If I'm made to feel like a villain for having spoken up, I'm not going to have the guts to see the legal fight through. Also, I am going to share that experience with my friends and they too will not want to speak up. How you make the victim feel during the process is quite important. How you hold their hand through the process is vital and, this thing of asking people to prove that sexual harassment occurred is uncalled for because there are no receipts. No one is going to harass you and then give you a receipt and say 'on this day I harassed you and this is the proof.'”

Starts at the top

Christelle Colman, MD of Elite Wealth Assets Insurance, said it all starts with the leadership of the organisation, explaining that predatory behaviour emanates from higher levels in the organisation. Over the course of a 30-year career, she had been the victim of predatory behaviour from senior men in the organisations that employed her.

In a previous role, while attending an executive leadership conference, she sat in a corner of the meeting room because she didn't want to be close to a particular individual, who nevertheless came and sat next to her.

"He made a very inappropriate comment in front of the leadership team. Everyone laughed and I felt utterly embarrassed. He then went on to repeat the same joke at lunch and I firmly believe that this was done to put me in my place,” said Christelle, adding that inappropriate jokes made at the expense of a female colleague can be used a bullying tactic to let her know that she is respected and low in the pecking order of a leadership team. 

She also said that, because predatory behaviour is often exhibited by high-performing individuals, it is not easy to speak up against them and report inappropriate behaviour. When the aforementioned incident occurred, she wanted to raise the issue with HR but the individual in question was very powerful within the structures of the organisation and had been instrumental in the company achieving incredible business performance. She never reported it and, as reflected upon her ordeal, she wondered how someone in a less senior role could possibly garner the courage to speak up against such behaviour when she, as a member, of the leadership team was not willing to do so. 

It’s not a South African problem

Chriselle said, however, that it was important to remember that the predatory and aggressive behaviour from men towards women is not unique to South Africa. 

“Sometimes we think that, because of the scourge of gender-based violence in this country, we are worse off than elsewhere in the world. And that this simply not the case,” she said 

“In my previous life, I was the CEO of European Business with a presence in South Africa. And I was the only female CEO out of 35 countries. Whenever I attended monthly meetings in Europe, I was surrounded by European men. And let me tell you, they have a much bigger problem.  The patriarchy that is entrenched in some of the well-known European companies is incredible.” 

Christelle was once called to Europe to present a strategy, and there was a bully on the executive committee “who really made it his business to make life difficult for me. I had a really bad interaction with him and literally flew back to South Africa and resigned the next morning.” 

“I would rather leave an organisation than face that situation. I am a rape survivor. I was raped when I was eleven years so I am very aware of predatory behaviour.”. 

She said that’s why companies really to nip this kind of behaviour in the bud. There are many companies that have and will continue to lose excellent talent if they do not address this issue. The impact of talent attraction can be catastrophic because not only will a high-performing individual leave and never return to the business, they will also damage the employer brand when they share their story with people in their network who in turn would not want to associate with such a company,

Financial damages can be hefty

Speaking on the extent to which the law protected victims of sexual harassment and predatory behaviour in the workplace, Fiona Leppan, director at Cliffe Dekker Hofmeyr, said there were many examples in case law of women who have had tremendous tremendous difficulties with post-traumatic stress disorder as a consequence of this type of conduct. 

As such, employers can indeed be held liable for even failing to prevent such incidences. 

“Once this type of behaviour manifests, it's got to be brought to the attention of the employer, not necessarily by the victim but through HR. The Employment Equity Act is very clear in stating that if an employer that hasn’t taken all reasonable steps in a situation to prevent that kind of conduct, it will find itself on the wrong side of liability,” said Fiona, adding that, should a victim come forward with information about an incident, they have rights that protect them from victimisation. 

When they provide confidential information, for example, that information must be kept confidential and if there was a person that was to release that information, it's considered a criminal offence under the Employment Equity Act. Victims are also protected against being subjected to any occupational detriment as a result of coming forward. 

“The person against whom a complaint is lodged certainly can't take the stance they are going to start finding fault in the complainant's work with the view of driving them out of the business through disciplinary processes. That will not be tolerated by our courts.”

Generally, in terms of victim remedies, she said the Labour Court has become extremely strident in exercising its powers under the EE act. This can lead to compensation claims, punitive damages, which can be awarded over above the compensation claims.

Said Fiona: “In one decision, the judge placed great emphasis on one of those preventative measures being ongoing training in your business to highlight what conducted will not be tolerated. Also, what are the consequences? An individual who is the harasser can be sued in his own right, for damages. "There is nothing to stop the employer saying 'I warned you not to do this? You caused me a loss and I'm suing you in order to be recompensed.'"

Ultimately, the key takeaway from the webinar was that, if organisations are going to make any meaningful change regarding sexual harassment it has to come from the top. Leadership has to demonstrate that it is committed to addressing the issue. 

“Talk is cheap. We need to demonstrate how we deal with perpetrators. If we are just going to say, this is what we believe, this is what we stand against, and people continue to be subjected to sexual harassment, the trust deficit will remain, said Tantaswa. “We have targets for diversity. We have targets for revenue. But we are so quiet about an issue that, at its core, is about the safety and wellbeing of our people.”