Abstract

This note critiques the current approach to the adjudication of sexual harassment cases through the lens of two conflicting judgments. It argues that our courts have failed to articulate a coherent or a principled vision of sexual harassment law that is broader than the ‘sex guise’ in which sexual harassment cases are often presented. The argument developed in this note is that there has been a failure to differentiate between sex or conduct of a sexual nature and sexual harassment. Because of this failure, our courts appear to have made sex or every conduct of a sexual nature in the workplace a focus area of sexual harassment law. With reference to the historical evolution of the prohibition of sexual harassment and radical feminist literature, this note argues that sexual harassment law is not, and was never intended to operate as, a remedy for every conduct of a sexual nature in the workplace. There may be conduct of a sexual nature which is deemed inappropriate in the workplace, but such conduct does not become sexual harassment for that reason. The objective behind the prohibition of workplace sexual harassment is the elimination of sexism which is the real barrier to gender equality in the workplace.