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 unwanted conduct which was persistent or serious and demeaned, humiliated or created a hostile or intimidating environment, or was calculated to induce submission by actual or threatened adverse consequences, and 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?