Sexual harassment a big concern in the legal profession

September 13th, 2022

The Cyrus R Vance Center for International Justice held a series of webinars on ‘Eliminating Sexual Harassment in the Workplace’, with the first webinar held on 17 August 2022. The webinar featured a panel of speakers that included among others, Labour Court Judge, Benita Whitcher and the Chairperson of the Legal Practice Council (LPC), Janine Myburgh. The first speaker at the webinar was a Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA), Zanele Sibiya, who gave a brief overview of the Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace (the Code) that came into effect on 18 March 2022 and replaced the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 2005.

Ms Sibiya pointed out that harassment is a major complaint in the workplace and constitutes several cases brought to the CCMA and the higher rate of gender-based violence in the country. She said that the current code is lengthy and eliminates any ambiguity in its translation and application. She added that it is very comprehensive, and its application includes voluntary employees. She said that the previous code was limited to employees, job applicants and seekers.

Ms Sibiya pointed out that the Code covers all forms of harassment and is not just limited to sexual harassment. She specified that it now covers bullying as a form of harassment. She said that the list of who can complain (victims) is lengthy, and one can now identify themselves in this list. Ms Sibiya added among other things, that the definition of what a workplace is has now been made to include virtual workplaces, so that wherever one works from they will be protected, and that they will not be bullied online. The Code defines harassment as any unwanted conduct, which impairs on one’s dignity and creates a hostile and intimidating work environment. It can create physical, psychological, emotional and gender-based abuse and the abuse of power. Cyber bullying is also covered in the Code.

Ms Sibiya pointed out that regarding the issue of harassment, it is not a general feeling, but about how the victim feels, and whether the behaviour or act towards them was unwanted. She said that people would argue that it is not easy to identify when the act is harassment, or give reasons, for example, the hugging of a colleague. She pointed out that if the victim feels that the conduct was unwanted and made them uncomfortable and linked to one of the listed grounds in the Code, it is harassment. She said that the Code is victim focused compared to the previous one.

Ms Myburgh briefly spoke about the LPC’s implementation and publishing of its Sexual Harassment Policy. She said that sexual harassment is a major concern in society and regrettably it is still a major concern in the legal profession. Ms Myburgh pointed out that the aim of the LPC’s Sexual Harassment Policy is for legal practitioners and candidate legal practitioners to conduct themselves in a manner, which creates a working environment in which all professionals respect one another and must be treated with respect, integrity, dignity, and privacy.

Ms Myburgh said that sexual harassment is regarded as a form of unfair discrimination based on gender or sexual orientation, which infringes the right of a person who is subjected to harassment. She added that the LPC has taken it a step further and that sexual harassment in the legal profession will not be committed, tolerated or condoned. Ms Myburgh said that persons who are subjected to sexual harassment who are in the legal profession and may not necessarily want to go to the CCMA, have a right to lay a complaint with the LPC and appropriate action will be taken. She further pointed out that allegations of sexual harassment will be dealt with in a serious, sensitive, and confidential manner.

Some of the grounds that are listed as sexual harassment in the LPC’s Sexual Harassment Policy, among others includes –

  • unwanted physical contact, such as touching or assault;
  • verbal forms of sexual harassment, including all unwanted innuendoes, gestures, hints, sexual advances and comments, sex related jokes, insults, unwanted graphic comments about one’s body or inappropriate inquiries about someone’s sex life and whistling inappropriately; and
  • sexual coercion, sexual favouritism, and others.

Ms Myburgh said the LPC strives to maintain the confidentiality throughout the investigation process. However, she pointed out that the LPC faces the challenge of receiving complaints from people who want to remain anonymous and that makes it difficult to investigate the matter where there is not enough detail. She added that she would like to urge those in the legal profession and those who were in the legal profession who have faced such situations, to reach out to the LPC. Ms Myburgh said that it is important for the LPC to weed out any form of abuse in the legal profession. She pleaded that everyone should take responsibility to ensure that the Code and the Sexual Harassment Policy is implemented.

Partner at Sullivan and Cromwell in New York, Ann Ostrager, said regulated sexual harassment and related legislation has become a hot topic in the Unites States (US) and both company employers and government are becoming increasingly focused on it. She pointed out that in the US it is regulated in a combination of federal law and state law. She said that at the federal level sexual harassment is illegal, where an employee can prove that she is a member of a protected class, when unwanted references were made, harassment was sexually motivated and the harasser has a type of supervisory authority over the employee, and if that is proven there is strict liability.

Ms Ostrager added that employers can be held liable for creating a hostile working environment. She said that at a state level the rules in place vary a lot. She said that there are states with very protective regimes in place, which allow for much more employee friendly rules and that there are states that do not do anything about federal minimum standard. She gave an example that in New York, discriminatory harassment is unlawful, regardless of whether the harassment would be considered serve or pervasive. She pointed out that by contrast other states have not done anything or done little to expand to standards by federal law, state such as Alabama and Mississippi, where there are no state statutes that address sexual harassment in the workplace. She added that states like Florida, Nevada, and Arizona, have state laws that apply only to employers with 15 or more employees. Some states like Indiana have limited remedies.

Ms Ostrager pointed out that in the legal profession the rules of conduct are much broader than what the federal law requires. She said that the American Bar Association (ABA) Model Rules for Professional Conduct provides that it is professional misconduct for a legal practitioner to engage in conduct that they know or should know constitutes harassment or discrimination. She pointed out that harassment can include any derogatory or demeaning verbal or physical conduct. Ms Ostrager added that there is an ABA opinion, which states that even a single instance of a legal practitioner making a derogatory sexual comment directed to another individual in connection with the practice of law, would be considered a violation and if it may not be considered serve or pervasive enough to violate federal law but it would be a violation of professional standard.

Judge Witcher spoke on the duty and role of a judge when presiding over sexual harassment cases. She said that the duty of the adjudicator is to effect and balance the right of the accused and the complainant. She pointed out that the accused must be afforded a fair hearing. In her presentation at the webinar, she focused on the rights of the complainant. She pointed out that the CCMA and bargaining councils adjudicate the bulk of the sexual harassment cases and not the Labour Court. She pointed out that commissioners have to play an important role in the legal system’s response to sexual harassment.

Judge Witcher said that studies have shown that legal proceedings, especially where the victim has to face multiple inquiries often compound their trauma. She added that sadly before victims get to court, they must face several procedures and interrogations. Judge Witcher said that when commissioners adjudicate sexual harassment cases, they should appreciate that by the time the victim arrives before the commissioner they have already been through a lot. She added that the duty of a commissioner is to conduct and control the proceedings in a manner that the accused rights do not overshadow the victims’ rights to be treated with dignity and respect.

Judge Witcher said the cross-examiner has no right to be rude or loud to an opposing witness or to put irrelevant submissions to the complainant that are designed to humiliate. She added that commissioners must be conscious of protecting the dignity of victims during proceedings.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.