FOR IMMEDIATE RELEASE
CAPE TOWN: 1 MAY 2022
How does the new Harassment Code impact womxn at work?
On 3 March 2022, the Minister of Employment and Labour Thembelani W Nxesi, signed into law the ‘Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace (the Code on Harassment). The purpose of the Harassment Code is to ensure that South African workplaces comply with their constitutional as well as our country’s international obligations to ensure safe and just working environments.
The Code’s publication follows South Africa’s ratification of the International Labour Organisation’s Convention on the Elimination of Violence and Harassment in the World of Work (known as C190) in November 2021. This Convention seeks to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace. An important aspect of the Convention, especially for our context, is that it applies to all employers and employees irrespective of whether they work in the formal or informal sector.
The Women’s Legal Centre is approached every year by womxn who are facing multiple forms of discrimination in the form of harassment in their workplaces. Therefore, our work is focused on ensuring that our legislative and policy framework ensures just and equitable work environments for womxn. Especially those womxn who work in vulnerable and precarious work environments such as domestic work, farm work and sex work.
These womxn work in particularly precarious conditions, in private homes or on privately owned farms where there is little oversight and accountability, and they are far removed from access to resources to vindicate their rights. Many womxn also form part of South Africa’s informal economy applying their trade at taxi ranks and on street corners as traders or work as health care workers within their communities.
It is important to view womxn’s work through the historical context of our apartheid legacy, which created and maintained systems that continue to disproportionately affect womxn. Considering the racial, sexist biases that affect [r1] [AC2] power dynamics in the workforce, African black womxn in particular face discrimination in a compounded and intersectional manner. It is also through this patriarchal view of womxn that the labour traditionally performed by womxn and perceived as “womxn’s work” is dismissed, undervalued, and underpaid.
Sexual harassment is a heinous form of discrimination that impacts on womxn’s ability to work, advance in the workplace and enjoy the rights that they are entitled to in terms of our Constitution. It can also present a very real threat to the safety and security of womxn in the workplace. At its core, sexual harassment is about the exercise of power and because of our patriarchal society, it is more often men who are in positions of authority over womxn in the workplace. This leads to an abuse of power to influence advancement, remuneration, employment opportunities and even the prospect of learnerships.
The Code on Harassment is one of the ways in which the implementation of laws should provide safer and just work environments to womxn as it recognises that a wide range of individuals can be subjected to harassment including those already employed, those seeking employment, volunteering or in learnerships. It places a clear obligation on the employer to ensure that their workplace and the place where their employees conduct work (where employees are working remotely or travelling for work) for them is free from harassment.
The Code on Harassment places an obligation on employers to take proactive and remedial steps to prevent all forms of harassment in the workplace. It further requires employers to assess their current policies and procedures to ensure that they adequately address harassment. The Code on Harassment provides practical guidance to employers in respect of their harassment policies and procedures as well as how through education and training initiatives they can create safer and discrimination-free work environments.
The Code on Harassment goes a long way in creating a culture where womxn are believed when coming forward with harassment claims. It requires that even in instances where no formal complaint of harassment is made, an employer when made aware of harassment would have an obligation to investigate the conduct and assess whether disciplinary procedures are warranted.
It does not require that the victim themselves report the conduct but allows for a third party to do so on their behalf. It cautions against negative inferences being drawn where complaints do not report incidents immediately and places the focus of the conduct on the impact that the conduct had on the victim rather than on whether the perpetrator intended for such conduct to be considered discriminatory.
The Code on Harassment recognises that the world of work is changing, and that there is a need to ensure that all the different spaces where womxn work are safe and free from harassment. It recognises that along with the Employment Equity Act, Labour Relations Act and the Promotion of Equality and Prevention of Unfair Discrimination Act, a legal framework is created that obligates a discrimination-free workplace.
The Code on Harassment presents us with another tool to advance the substantive equality of womxn in South Africa. We must all now ensure that through its implementation those most vulnerable in the workplace are able to enjoy the rights and benefits that they are entitled to as workers. During the month of May, the Women’s Legal Centre will be facilitating a Know your Code education campaign. Be sure to follow our social media channels for more information on the Code on Harassment.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.
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