New racial and sexual harassment workplace rules for SA

A new bill that aims to protect employees from harassment and violence within a work environment is now available for public comment and touches on a number of relevant issues in South Africa’s workforce.

Labour Minister Thulas Nxesi recently published a draft code of good practice, aimed at eliminating violence or harassment in the South African workplace.

The policy falls under the Employment Equity Act and applies to all sectors, including formal and informal economy as well as public and private.

The suggested code of conduct applies to all areas of the working world and includes work trips, public and private spaces, changing or washing facilities, employer-provided accommodation, respective commuting modes and work-related communication.

Sexual harassment and violence

According to the new policy, sexual harassment and violence can be defined as directly or indirectly engaging in conduct that the perpetrator knows is not welcome, is offensive and makes the person subjected to it feel uncomfortable while interfering with work, causes harm or creates the assumption that harm may be caused to either the complainant or someone else.

Examples provided by the bill include:

– Expressing or implying threat of reprisal or actual reprisal due to refusal to comply with a sexually-oriented request, advance, attention, or proposals

-Unwelcome implicit or explicit behaviour including messages, advances or remarks of a sexual nature that cause offence, intimidation or humiliation. The promise of reward in return for complying with sexually-orientated advances or proposals

– Any unwelcome sexual attention, proposal or advances from a person who should know reasonably or does know that the attention is unwelcome

– Watching, following or accosting of complainant or a related person. Loitering outside or near where the complainant or related person lives, works, studies or happens to be

– Implied or expressed threats

A test is also detailed in the conduct code that is used to evaluate sexual violence and harassment. According to the bill, the subjective feelings of the complainant must be evaluated against the objective standard of a “reasonable person” test to determine how a reasonable person would react in the same circumstances.

Sexual violence and harassment is defined differently from sexual attention due to the persistent behaviour of an individual despite the recipient making it clear that they are offended by it, and the person knowing that their behaviour is unacceptable.

Racial violence and harassment

According to the bill, racial violence and harassment can be defined as persistent and unwanted conduct or even a single event where humiliation or a demeaning activity takes place that creates a hostile or intimidating environment to induce submission related to a person being from, or being presumed as being from, a group identified by one or more prohibited grounds or characteristics.

This can be either indirect or direct behaviour, nonverbal or verbal, gestures or racist name calling or use of memes or innuendos.

As with the sexual violence and harassment, a test must be applied objectively with reference from a reasonable person.

With reference to these incidents, it must be established that the conduct was unwanted, persistent and serious, demeaning, calculated, threatening, related to race or ethnic origin, what the impact was and how the perpetrator treats those outside of the specific group of the complainant.

Other things detailed in the new bill are steps that businesses can take to eliminate harassment, awareness programmes to be introduced, treatment and care for victims, privacy of personal information, obligations of both employees and employers and monitoring evaluation process.