Transcript Slide 1

DEALING WITH RACISM & RACIAL
HARASSMENT
PROFESSOR ALAN RYCROFT
UNIVERSITY OF CAPE TOWN
MS EVA MUDELY
BOWMAN GILFILLAN
THE UNDERLYING CONSTITUTIONAL
PRINCIPLES
 Equality
 Dignity
 Freedom of expression
 Balancing competing rights
DISTINCTION BETWEEN RACIAL
HARASSMENT & RACIAL
DISCRIMINATION
 Racial discrimination is an act or omission, whether
official or unofficial, which differentiates on the basis of
race.
 Racial harassment is a form of social behaviour (by
either the employer or employees) that is intended to
belittle, marginalise, coerce, manipulate, intimidate, or
take advantage of persons belonging to a particular race.
THE MEANING BEHIND THE
TERMINOLOGY: RACIAL
DISCRIMINATION
 Racial discrimination – Any distinction, exclusion,
restriction or preference based on race, colour, descent,
or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political,
economic, social, cultural and any other field of public life
EXAMPLES OF RACIAL DISCRIMINATION
FROM RECENT CASES
 disproportional wage differentials
 non-appointment because of race
 non-retention of affirmative action appointees in
retrenchment
 a misapplication of affirmative action policies
 disparities in relocation allowances
 a refusal to admit an employee to certain funds
 indirect race discrimination.
RACIAL HARASSMENT
THE LEGISLATIVE BACKGROUND
 EEA (applies to workplaces)
s 6(1) – prohibition of unfair discrimination
(direct or indirect) on grounds of race, ethic or
social origin, colour, culture, language etc
s6(3) 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 s 6(1)
PEPUDA (applies outside workplaces)
7
Prohibition of unfair discrimination on ground of race
Subject to section 6, no person may unfairly discriminate against any person on
the ground of race, including(a) the dissemination of any propaganda or idea, which propounds the racial
superiority or inferiority of any person, including incitement to, or participation in,
any form of racial violence;
(b) the engagement in any activity which is intended to promote, or has the effect
of promoting, exclusivity, based on race;
(c) the exclusion of persons of a particular race group under any rule or practice
that appears to be legitimate but which is actually aimed at maintaining exclusive
control by a particular race group;
(d) the provision or continued provision of inferior services to any racial group,
compared to those of another racial group;
(e) the denial of access to opportunities, including access to services or
contractual opportunities for rendering services for consideration, or failing to take
steps to reasonably accommodate the needs of such persons.
11 Prohibition of harassment
No person may subject any person to harassment.
S 1 'harassment' means unwanted conduct which is
persistent or serious and demeans, humiliates or creates
a hostile or intimidating environment or is calculated to
induce submission by actual or threatened adverse
consequences and which is related to(a) sex, gender or sexual orientation, or
(b) a person's membership or presumed membership
of a group identified by one or more of the prohibited
grounds or a characteristic associated with such group
ANALYSIS OF THE CASE LAW
HOW TOLERANT MUST AN EMPLOYER
BE?
DEROGATORY LANGUAGE
 Lebowa Platinum Mines Limited v Hill (1998) 19 ILJ 1112
(LAC)
 Crown Chicken (Pty) Limited t/a Rocklands Poultry v
Kapp & Others (2002) 23 ILJ 863 (LAC)
DEROGATORY LANGUAGE cont.
 In upholding the dismissal, the Labour Appeal Court held
as follows:
“It seems to me that in being required to uphold the Constitution and the human rights
entrenched in it, the courts are enjoined to play a particularly critical role in, among
others, the fight against racism, racial discrimination and the racial abuse of one race
by another. …The role of the Labour Court and this court is particularly important in
the field of labour and employment. This is so because the decisions of these two
courts have a significant impact in almost every workplace throughout the breadth
and the length of the country - in offices, in shops, in factories, on farms and
elsewhere… Within the context of labour and employment disputes this court and the
Labour Court will deal with acts of racism very firmly. This will show not only this court
and the Labour Court's absolute rejection of racism but it will also show our revulsion
at acts of racism in general and acts of racism in the workplace in particular. This
approach will also contribute to the fight for the elimination of racism in general, and
racism in the workplace in particular, and will help to promote the constitutional values
which form the foundation of our society”
”
WHAT ABOUT LABELING CERTAIN
GROUPS OF PEOPLE?
 Oerlikon Electrodes SA V CCMA & Others (2003) 24 ILJ
2188 (LC)
 ‘Dutchman’
 ‘White supremacist’
 ‘Koelie’ (derogatory language)
DOES RACIAL HARASSMENT GO
BEYOND DISCRIMINATORY NAME
CALLING?
 Words and phrases that imply or infer certain
characteristics or negative perceptions are also covered
 SA Transport & Allied Workers Union obo Finca v Old
Mutual Life Assurance CO (SA) Ltd & Another (2006) 27
ILJ 1204 (LC)
 Fester and AVR Labour Outsourcing (2007) 28 ILJ 1349
(CCMA)
“Since you people took over, it’s difficult on our side”
DOES RACIAL HARASSMENT GO
BEYOND DISCRIMINATORY NAME
CALLING? Cont.
 SA Chemical Workers Union & Another v NCP
Chlorchem (Pty) Ltd & Others (2007) 28 ILJ 1308 (LC)
“You are a racist”
 National Union of Mineworkers & Another v CCMA &
Others (2010) 31 ILJ 703 (LC)
“You know what, I hate white people…”
CARTOONS/ SATIRE
 Edcon Ltd v Grobler No & Others (2007) 28 ILJ 2762
(LC)
 Cronje v Toyota Manufacturing (2001) 22 ILJ 735
(CCMA), decision affirmed by the Labour Court in Cronje
v CCMA & Others (2002) 23 ILJ 1563 (LC)
ESTABLISHING RACIAL HARASSMENT
To establish racial harassment an employer must prove on
a balance of probabilities that the conduct complained of
was
(a) unwanted conduct which
(b) was persistent or serious and
(c) demeaned, humiliated or created a hostile or
intimidating environment, or
(d) was calculated to induce submission by actual or
threatened adverse consequences, and
(e) which was related to race or a characteristic associated
with such group.
THE LIABILITY OF THE EMPLOYER
 Failure to protect harassed employees – Would this
constitute racial discrimination? (Finca Case)
 S 60 EEA
 Common law
THE LIABILITY OF THE EMPLOYER
cont.
 Could racial harassment constitute defamation? Civil
action (Grobler case)
 Compensation – the problems of SATAWU obo Finca v
Old Mutual Life Insurance Company (SA) Limited and
another (2006) 27 ILJ 1204 (LC)
APPROPRIATE EMPLOYER RESPONSES
 Creating and maintaining a working environment in
which the dignity of employees is respected
 General duties of employers and managers
 The duty to adopt a harassment policy
 Worker education
 The need for space to talk about race
 Zero-tolerance approach and consistent discipline
 Reformative discipline?