SUBMISSIONS TO THE NATIONAL ASSEMBLY PORTFOLIO COMMITTEE ON LABOUR ON DISCRIMINATION IN THE WORKPLACE

Submitted: 7 September 2007

Women's Legal Centre and Rural Education, Awareness & Community Health

Introduction:

The Women's Legal Centre (WLC) and REACH (Rural Education, Awareness and Community Health) welcome this opportunity to make submissions to the Portfolio Committee on Labour (National Assembly). These submissions relate to compliance with the prohibition of sexual harassment contained in the Employment Equity Act 55 of 1998 (the EEA). While the focus is on farm workers, the suggestions below apply to all vulnerable workers in the economy.

The Women's Legal Centre is a non profit law centre which seeks to advance the struggle for and the promotion and development of human rights for women, particularly Black women, who suffer socio-economic disadvantage, through the advancement of equality.

REACH is a non-profit organisation that addresses sexual harassment and sexual violence on farms in the Overberg Region of the Western Cape.

The legal position

Section 6 of the EEA provides that "no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender. sex, pregnancy, marital status, family responsibility. ethnic or social origin, colour, sexual orientation. age, disability, religion, HIV status. conscience. belief, political opinion, culture. language and birth."

In addition, section 6(3) provides that: "Harassment of an employee is a form of unfair discrimination and is prohibited on anyone, or a combination of grounds of unfair discrimination" as listed above.

Section 5 places an obligation on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

Sections 5 and 6 apply to all employees irrespective of size or turnover, with the exception of members of the National Intelligence Agency, South African Secret Service and National Defence Force.

The EEA thus places a duty on every employer, (save for the above exceptions) to take steps to eradicate sexual harassment in the workplace.

Research findings:

Context

In South Africa we need to acknowledge the context of racial discrimination, apartheid and unemployment and its impact on early developments in the law of discrimination. Work and employment within the context of poverty and apartheid in South Africa has been critical to women and men's survival and independence. Apartheid exemplified and promoted employment practices that disadvantaged black people in South Africa. By the same token sexual harassment exemplifies and promotes employment practices, which disadvantage women at work and intimately degrade and objectify women. Sexual harassment undercuts women's potential for social equality in the same manner apartheid policies undercut the potential for social equality for black women and men in South Africa. Sexual harassment does not therefore apply or affect all women equally. Research indicates that South African women are divided by race, class, culture, urban and rural situation, education and language with black women being the most likely victims of sexual harassment since historically they have occupied the lowest rung of the working ladder and have experienced subordination as black women and as members of an exploited working class.1

Sexual harassment on farms

A contextual analysis of a typical rural farming environment paints a picture of an isolated and vulnerable community, one that is marred by certain debilitating social and working conditions which playa role towards creating an environment susceptible to sexual harassment and sexual abuses, amongst others. Rural farm working communities face many educational, financial and social problems and have little knowledge of, or access to, effective legal and supportive services.

A recent research study by REACH, Sexual Harassment: is it really a problem on farms?, revealed that 32 % of both women and men experienced some form of sexual harassment ranging from unwelcome comments or remarks of a sexual nature to its worst form, rape (in many instances it was at what first appeared to be innocent attentions of a sexual nature that increasingly progressed into more sinister incidences of sexual harassment and which finally escalated to rape). The study further revealed the following:

Sexual harassment was not limited to the workplace, the majority of incidences of sexual harassment occurred in the home or in a social setting. There was no age exempt from sexual harassment, although the majority of males were harassed in their late twenties, while females were harassed in their teens. Most alarming however was that young female children under the age of 13 were predominantly the main victims of sexual harassment and abuse on farms. The type of abuse most often described was rape.

· Most victims of sexual harassment, of those who chose to confide in someone, were told not to take action - to keep quiet about it. This was mostly as a result of shame, embarrassment and fear; not recognizing the behavior as harassment; and lack of knowledge or opportunity to address the situation.

· About a third of the victims of sexual harassment knew of someone else being harassed by the same perpetrator.

· 30 % of females and 41 % of males knew of someone on their farm being sexually harassed or abused.

· According to the participants, the majority of the farms do not have a policy or code of good practice on sexual harassment.

As is evident there are several factors that serve as a barrier to effective intervention on sexual harassment cases. Lack of intervention or barriers to effective intervention however are not only restricted to the confines of the farm worker community but extend across other sectors of the community from farm management to police services, most often as a result of feeling ill-equipped to deal with such cases.

Sexual harassment in an urban context

Approximately 40% of the labour related queries received by the WLC relate to sexual harassment. In many of these cases the employers have no policy relating to sexual harassment in place. Our experience has shown that even where there is a policy in place the workplace culture and response of the employer can deter women from reporting harassment. Women generally work in highly vulnerable jobs, such as domestic, casual or seasonal work. Studies2 indicate that up to 76% of career women in South Africa have been harassed in some or other form in the workplace.

These studies also show that women are commonly the victims of male perpetrators. It can be assumed that an even higher percentage of women are harassed or abused in the more vulnerable jobs, the informal sector, and illegal work such as sex work, in which sectors women predominate. Due to poverty, high unemployment levels and their disproportionate burden of household maintenance, women are less likely to challenge unfair labour practices and gender based violence in the workplace.

Thus in sexual harassment, the element of gender subordination will often coexist with racial and class dimension. Bonthuys3 points out that in addition to being the most likely targets of sexual harassment, the most disadvantaged women will be the least able to resist it because they lack the resources to litigate, because work is scarce and because they their families tend to depend on their income.

Submissions

While there is much focus on employment equity targets, we believe insufficient notice is being taken of the fact that sexual harassment in the workplace is a major obstacle to equal opportunity in the workplace for Black women. Further, it violates women's constitutional rights to equality, dignity, equity in the workplace and freedom and security of the person.

As stated above, the EEA places a positive duty on employers to take steps to eliminate unfair discrimination such as sexual harassment.

The duty of employers is further elaborated on in Section 60 of the EEA. In terms of section 60(1):

"If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer."

Section 60 continues:

"(2) The employer must consult all relevant parties and must take the necessary steps to eliminate to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3) and employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act. "

This section is important since it casts the net of vicarious liability wider in that it does not confine the test to whether or not the contravention occurred in the course and scope of employment, but rather looks at whether an alleged act occurred "whilst at work." It also obliges employers to take steps to remedy the situation and it is only in the event that an employer fails to take any steps or fails to take reasonable steps, that liability will arise.

Section 25 of the EEA requires a designated employer to display a prescribed form in the workplace informing employees about their rights under the E EA. It further requires designated employers to report on compliance with the EEA in prescribed forms EEA 1 and EEA2.

The compulsory notice does NOT include reference to sexual harassment being a form of prohibited unfair discrimination. The forms make NO specific provision for reporting on steps taken to eliminate sexual harassment in the workplace.

Since the enactment of both the Constitution and the EEA it was recognized that there was a need to bring sexual harassment and the Code of Good Practice within the realm of discrimination law. In September 2005, an amended version of the Code of Good Practice on the Handling of Sexual Harassment was promulgated. Accordingly, there now exists an Amended Code of Good Practice on the Handling of Sexual Harassment, although most of the original provisions have remained unaltered. The Amended Code has brought the scope of sexual harassment clearly within the confines of the Constitution and the discrimination framework of the EEA. However, the Code is not binding in law, Section 203 of the LRA provides that 'any person interpreting or applying this Act must take into account the relevant code of good practice.' The status of the Code is that of a guide.

Reactive rather than preventative

While all employers4 are bound to take steps to eliminate sexual harassment, the legal framework is reactive rather than preventative. Employers can be challenged under the EEA after the harassment has taken place. The guidelines in the Code would then be considered, along with the workplace policy, if any. Many women, especially Black women and women employed in rural areas are unlikely to report harassment and even less likely to challenge it.

The REACH report highlights the following:

· South African law is failing to protect victims of sexual harassment

· in many instances the rape of a woman, man or child, could have been prevented as often months before the actual rape took place, the victim had been sexually harassed by the perpetrator

· if people are made aware of their legal protections, including the benefits of reporting cases, we can prevent perpetrators from reaching that point where they inflict sexual violence against an intended victim.

· by improving the rights of our citizens, especially those of women, we can contribute towards the eradication of sexual harassment and sexual violence in our country

The research has highlighted a need for measures that are preventative, such as communication to employees that sexual harassment is a form of unfair discrimination, that employers can be held liable for contraventions of the EEA in relation to sexual harassment, and compulsory policies and procedures that allow for reporting and managing incidents of sexual harassment.

Recommendations:

· The form issued in terms of Section 25 of the EEA should be amended to include sexual harassment as a form of unfair discrimination.

· The necessary steps (to be taken by the employer and set out in the Code) should also be outlined, including advising the victim of the procedures available to deal with the sexual harassment, offering advice, assistance and counseling where reasonably practicable and following the procedures, in accordance with the wishes of the victim.

· The prescribed forms should provide for employers to analyse the barriers to employment with a specific reference to sexual harassment, and to report on compliance with regard to sexual harassment.

· The inspectorate of the Department of Labour should in performing its functions under any employment statute (and as a matter of course) ensure that information as set out above is given to employers at every workplace they visit to display. The provision of this material should be part of the checklist they have for the performance of their duties.

· Where the Department of Labour takes specific initiatives to monitor conditions on farms, the issue of sexual harassment should form part of their agenda.

· The Department of Labour should give consideration to inviting NGOs to contribute to its initiatives on strengthening both understanding of and compliance with the prohibition of sexual harassment in the EEA.