Sexual harassment in the workplace : lessons for Botswana from a South African legal perspective

LLM (Labour Law), North-West University, Potchefstroom Campus, 2014Equality of opportunity and treatment in the workplace forms one of the critical components of an individual's ability to obtain and remain in employment and occupation. In a world where qualifications, experience and individual merit can be easily by-passed owing to diverse workplace discriminations, the ability of employees to enjoy their right to work cannot be fully achieved if the workplace is marred with inequalities. Sexual harassment has been characterised as one of the workplace hazards that impinges on the achievement and enjoyment of the right to equality of opportunity and treatment in the workplace and defeats the right of employees to decent work. Not with standing the acknowledgement of its existence and prevalence, sexual harassment is still treated as an unmentionable concept in Botswana in legal and academic circles. The labour legislative framework has been less emphatic when it comes to recognising and setting out the proper sanctions for sexual harassment in the workplace. At present, only public servants are assured of a legal remedy should they experience such harassment. The legal framework does not openly extend protection to employees in the private sector, leaving them uncertain of the proper forums to approach. There is not even the assurance that sexual harassment is prohibited and punishable at law. Since it is rarely discussed in academics and not prohibited outright, it is safe to assume that most incidents of sexual harassment are shrouded in secrecy owing to employees' lack of knowledge of their rights. In contradistinction, South Africa presents a legal framework conscious of the reality of sexual harassment in the workplace. It employs the use of equal opportunity laws to give authority to a Code of Good Practice that outlaws sexual harassment. The South African Courts have also played a pro-active role in ensuring compliance with legislative provisions and developing common law principles on sexual harassment in the workplace. In addition, legislation that outlaws harassment in a general sense has been enacted to add to laws prohibiting sexual harassment. Whereas the mere existence of laws is not an end in itself, it is submitted that sexual harassment laws may serve to deter this conduct, but most significantly, to inform employees that their rights in the workplace are not limited to, amongst others, a guarantee from unfair dismissals and withholding of wages. The argument is that sexual harassment should be seen as a violation of employees' human rights, as opposed to a mere misconduct. With that realisation in mind, the need to progress from sole reliance on Codes of Good Practice to unequivocal and binding laws reflects the concern that the government of the day has for the protection of the human rights of employees and the consonance of national labour laws with the international standard. This contribution presents an examination of the two legal frameworks in so far as sexual harassment in the workplace is concerned. The aim is to determine the shortcomings of Botswana's framework and outline lessons that may be learnt from the South African legal framework. The position of international law is also considered to ensure that the lessons to be learnt from South Africa are in consonance with the international standard.Master