AUTHOR: MICHELLE POSEMANN
PUBLICATION DATE: JULY 25, 2025
In terms of the Employment Equity Act 55 of 1998 (EEA), which promotes, inter alia, gender equity in the workplace, harassment is a form of unfair discrimination and it is prohibited on any one or combination of grounds listed in the Act, including any arbitrary ground.
Whilst the term ‘harassment’ is not defined in the EEA, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) provides that the term is generally understood to be an abuse of power and unwanted (or unwelcome) conduct which impairs dignity; creates a hostile or intimidating work environment for one or more employees, or is calculated to, or has the effect of inducing submission by actual or threatened adverse consequences; and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA. Sexual harassment is unwelcome conduct of a sexual nature whether direct or indirect that the perpetrator knows or ought to know is not welcome.
The Labour Appeal Court has held that: “[i]n treating harassment as a form of unfair discrimination in section 6(3), the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee’s rights, violating that person’s dignity and limiting their right to equality at work”. ¹
The Code aims to eliminate all forms of harassment in the workplace by providing guidance on the policies and procedures to be implemented if harassment occurs. The scope and ambit of the Code is broad, and it is important for employers to understand the nature and application of the Code in order to mitigate the risk of being found vicariously liable in terms of section 60 of the EEA. ²
The Code is also an extension of an employer’s obligation to ensure, insofar as reasonably practicably possible, a safe working environment, which includes an environment free from all forms of harassment, including psychological harm.
The Code provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace.
Employer’s need to ensure that policies are in place to address harassment in the workplace and that employees are aware of what constitutes inappropriate conduct, and of what processes to follow should they feel they are being harassed. An employer must assess conduct on an objective basis, from the perspective of the person who alleges the harassment. Importantly, the primary focus is on the impact of the conduct with reference to the “reasonable person” test and not on the intention of the alleged perpetrator.
Until such time as employers take their obligation to eliminate harassment, and in particular, sexual harassment, in the workplace seriously by adopting a zero-tolerance approach, gender equity will remain aspirational.
Contact Michelle Posemann at Garlicke & Bousfield should you currently have harassment issues that need addressing or should you wish to be proactive and formulate policies and processes to promote gender equity in your workplace.
¹ Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC) at para 32.
² (1)If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any 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.
(2) The employer must consult all relevant parties and must take the necessary steps 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), an 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.
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