Sex Discrimination and Harassment in South Africa: The Need For Legislative Reform

By Abbie Carver

“[f]reedom cannot be achieved unless women have been emancipated from all forms of oppression, . . . unless we see in visible and practical terms that the condition of the women of our country has radically changed for the better, and that they have been empowered to intervene in all aspects of life as equals with any other member of society.”

-Nelson Mandela[1]

 Sexual harassment and discrimination hampers the integration of women into the labor market in all societies.[2]   However, South Africa seems to be disproportionally affected.[3]  More than 57% of South African Women work as domestic servants or agricultural laborers.[4]  South African women are therefore largely left out of unionization[5] and are often left vulnerable to the urges of their employers with regards to wages and working conditions.[6] 

 The South African constitution guarantees equality for women and allows for affirmative action to address both gender and race inequality.[7] South Africa’s Bill of Rights provides, “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of [race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”[8]

 In 1998, South Africa formally prohibited sexual harassment as a form of gender discrimination through its enactment of the South Africa Employment Equity Act (the “EEA”).[9]  The EEA focuses mainly on affirmative action, but also provided “ground-breaking” legislation in the area of sexual harassment.[10]  Although the EEA is ambitiously comprehensive, specifically defining the type of conduct that is prohibited and providing detailed procedures to address the current problems and reoccurrence, it is not clear to what extent sexual harassment has actually diminished in South Africa.[11]  The EEA prohibits discrimination in the workplace, either directly or indirectly, on the grounds of “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.”[12]  It further specifies that “harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).”[13] 

 The EEA places a burden on an employer to prove that the sex discrimination was fair.[14] However, the EEA is more employer-friendly than the law in the United States where the EEA applies only to employers who worked for more than three months and where the employer is only vicariously liable for an employee’s sex discrimination if the employer is informed about the problem and the employer fails to eliminate the conduct.[15]

 In 2000, South Africa also enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (the “Equality Act”).[16]  This act supplements the EEA by establishing an affirmative duty on the part of the state to promote and achieve equality; provides protection to employees that are excluded from the EEA and imposes responsibility and liability on some employers that are not “designated employers” under the Employment Equity Act.[17]

 While the South African constitution, EEA and Equality Act are important steps in providing protection to women in the workplace, legislative reform is needed to keep the fight for gender equality moving forward.  Despite the above legal reforms, South African women are still subject to the sexist conventions of their employers at concerning levels.[18]

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[1] Baden, Sally, Shireen Hassim, & Sheila Meintjes, Country Gender Profile: South Africa, Women’s Net. (Apr. 23, 2007), http://womensnet.org.za/links/genderpr.htm.

[2] Deborah Zalesne, Sexual Harassment Law in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms, 25 Harv. Women's L.J. 143.

[3] Id.

[4] Shaina Hutson, Gender Oppression and Discrimination in South Africa, (Jan. 1, 2007), http://dc.cod.edu/cgi/viewcontent.cgi?article=1026&context=essai.

[5] The Labour Relations Act 66 of 1995 promotes and facilitates collective bargaining in the workplace and regulates the right to strike.  It promotes employee participation in decision-making through the establishment of workplace forums; provides simple procedures of the resolution of labor disputes; establishes the Labour Court and Labour Appeals Court and provides for the registration and regulation of trade unions and employers’ organizations to ensure democratic practices and proper financial control.

Eric Taylor, The History of Foreign Investment and Labor Law in South Africa and the Impact on Investment of the Labour Relations Act 66 of 1995, 9 Transnat'l Law. 611

[6] Id.

[7] Id.

[8] The Constitution of the Republic of South Africa, available at: http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf (last visited Aug. 21, 2016).

[9] Zalesne, supra note 2.

[10] Id.

[11] Id. at 149.

[12] Id. at 160.

[13] Id.

[14] Id.

[15] Id. at 161.

[16] Id.

[17] Id.

[18] Id. at 169.