Employers are under a legal obligation to ensure that the workplace is free from unfair discrimination and harassment.
Racism does not always scream; it whispers, it jokes, it excludes, and it kills dreams before they are even spoken.
Racist abuse and harassment are forms of direct discrimination, and employers have a duty to protect their employees from any form of discrimination.
Section 6 of the Employment Equity Act (EEA) 55 of 1998 prohibits unfair discrimination and provides that harassment, including racial harassment of an employee, is a form of unfair discrimination.
Thato Makoaba, an Associate in the Employment Law practice at Cliffe Dekker Hofmeyr, told The Citizen that racial harassment is unwelcome conduct related to a person’s race, ethnic origin, or social background that impairs dignity, creates a hostile or intimidating environment, or coerces submission through threats.
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What employers need to know about racial harassment at work
Makoaba stated that employers are under a legal obligation to ensure that the workplace is free from unfair discrimination and harassment. Failure to act on instances of racial harassment amounts to a contravention of the EEA.
Accordingly, it is essential for employers to determine whether particular behaviour constitutes racial harassment. Key indicators include:
- Whether the conduct undermines the employee’s dignity;
- Whether it is persistent, harmful, or abusive;
- Whether it targets individuals based on race or ethnic identity;
- The overall impact on the affected employee(s).
How can employers combat racial harassment?
He said employers need to implement robust and well-communicated workplace policies to proactively combat harassment.
“In accordance with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, all employers are required to adopt a zero-tolerance approach to harassment.”
An effective workplace harassment policy should include:
- Clear channels for reporting complaints;
- The employer’s responsibilities upon receiving a report;
- Support mechanisms that are available to affected individuals;
- Procedures for the investigation and resolution of complaints;
- Disciplinary measures applicable to perpetrators.
“Such a policy not only helps to deter harassment but also promotes consistency in the handling of complaints. It educates employees on acceptable standards of behaviour and affirms the employer’s commitment to fostering a safe and respectful working environment.”
The content and communication of this policy will be taken into account when assessing an employer’s compliance with the EEA.
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What should employers do?
Makoaba added that while every complaint should be addressed with seriousness and sensitivity, employers must also be mindful of the risk of false allegations.
To safeguard the integrity of the complaints process, employers should:
- Conduct all investigations in a fair, thorough, and confidential manner;
- Include within their policy that malicious or knowingly false accusations constitute misconduct;
- Treat substantiated false claims as disciplinary offences, which may warrant dismissal.
An employee fired after false accusation
He said that in November 2024, the Labour Court had to consider whether an employee who was falsely accused of racism was, in fact, subjected to unfair discrimination as prohibited by the EEA.
“The employee was accused of being racist by one of his subordinates. The Western Cape Education Department convened a disciplinary enquiry to test the veracity of these allegations.
“An independent chairperson concluded that the allegations of racism did not have any merit and, consequently, no action was taken against the employee for the allegations of racism.”
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Employee dissatisfied with the outcome
However, the employee was dissatisfied with the department’s conduct and proceeded to refer a claim in terms of section 6(1) and 6(3) of the EEA on the basis that he had been harassed and thus unfairly discriminated against.
Furthermore, the employee sought to hold the department vicariously liable for the harassment under section 60 of the EEA, arguing that it had failed to take reasonable steps to eliminate the alleged harassment.
The court’s findings
Makoaba added that the court identified difficulties with the way the employee’s case was pleaded and inquired what the exact ground of discrimination was, as it was not readily apparent from the employee’s statement of claim.
Furthermore, the court noted that the employee did not plead that he was unfairly discriminated against based on listed grounds, i.e. that he was accused of being racist by a subordinate because he was a white male (with the listed grounds being race and gender in this example).
“Ultimately, the employee’s failure to plead his case with sufficient particularity proved to be fatal as the court upheld the Department’s application for absolution from the instance,” said Makoaba.
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