New workplace racial and sexual harassment rules proposed for South Africa

Labour minister Thulas Nxesi has published a draft code of good practice on the prevention and elimination of violence and harassment in the workplace in South Africa.

The draft policy, which falls under the Employment Equity Act, and is currently open for public comment, covers a number of areas including sexual harassment and online bullying.

The code aims to protect workers and other persons in the world of work, as well as other workers irrespective of their contractual status.

It applies to all sectors, whether private or public, both in the formal and informal economy, and whether in urban and rural areas.

The code also applies to the world of work occurring in the course of, linked with or arising out of work, including, but not limited to:

  • In the workplace, including public and private spaces where they are a place of work;
  • In places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;
  • During work-related trips, travel, training, events, or social activities;
  • Through work-related communications, including those enabled by information and communication technologies;
  •  In employer-provided accommodation;
  • When commuting to and from work.

Some of the key policies included in the draft code are outlined in more detail below.

Sexual violence and harassment

The policy defines ‘sexual violence and harassment’ as directly or indirectly engaging in conduct that the perpetrator knows or ought to know is not welcome, is offensive to the complainant and makes the complainant feel uncomfortable and interferes with work, causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.

This includes:

  • Following, watching, pursuing, or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies, or happens to be;
  • Any unwelcome sexual attention, advances or proposals from a person who knows or ought reasonably to know that such attention is unwelcome;
  • Unwelcome explicit or implicit behaviour, suggestions, messages, advances, attention, proposals or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated that the complainant or related person would be offended, humiliated or intimidated, (implied or expressed), the promise of reward for complying with a sexually-orientated request, proposal, advances or attention;
  • Implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually-oriented request, advance, attention, or proposals.

In addition to providing a number of examples, the code sets out a test to be applied for sexual violence and harassment.

The test states that the subjective feelings of the complainant should be evaluated against the objective standard of a “reasonable person /complainant” test which involves how the reasonable person would have reacted in the circumstances.

It notes that sexual attention becomes sexual violence and harassment when:

  • The behaviour is persistent, although a single incident of harassment can constitute sexual harassment;
  • The recipient has made it clear that the behaviour is considered offensive;
  • The perpetrator knows or ought to have known that the behaviour is regarded as unacceptable.

Racial violence and harassment

Racial violence and harassment is defined as unwanted conduct which is persistent or a single incident which is serious demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.

This includes direct or indirect behaviour which involves issues such as racist verbal and nonverbal conduct, remarks, abusive language, racist name calling, offensive behaviour gestures and racist cartoons, memes, or innuendos.

In applying a test, the code states that racial harassment has to be assessed objectively with reference to the reaction of the normal or reasonable person.

In addition, it has to be established on a balance of probabilities that the conduct of complaint was:

  • Was unwanted conduct, which
  • Was persistent or serious;
  • Demeaned, impaired dignity, humiliated, or created a hostile or intimidating environment or;
  • Was calculated to induce submission by actual or threatened adverse consequences and;
  • Was related to race, ethnic origin, or a characteristic with such group;
  • Whether a perpetrator would have spoken the words or behaved in the manner complained of towards the complainant but for the complainant’s race or ethnic origin;
  • How the alleged perpetrator treats other persons not of the complainant’s racial group or ethnic origin, even if the conduct complained of is race-neutral and whether language or other conduct is considered violence and harassment might depend on the circumstances; and the motives of the perpetrator;
  • The impact of the violence and harassment;
  • Whether the language or conduct is violence and harassment might depend on the circumstances of the particular circumstances and whether the language and conduct are directed at a particular person(s) and is insulting, abusive and /or derogatory.

Other considerations 

The policy also includes a number of considerations which should be considered by companies, These include:

  • Preventative steps that should be taken by businesses to stop and eliminate harassment;
  • Prevention and awareness programmes which should be introduced;
  • Treatment, care and support which should be offered to victims;
  • Privacy, consent and record-keeping of personal information;
  • Obligations on employers and employees;
  • Monitoring and evaluation practices.

You can read the full directive below.

Read: Shake-up for South African companies that are ‘not transforming fast enough’

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New workplace racial and sexual harassment rules proposed for South Africa