| 6.1 | Racial harassment is a form of unfair discrimination prohibited by section 6(1) of the EEA which is related to a person's membership or presumed membership of a group identified by one or more of the listed prohibited grounds or a characteristic associated with such group. Racist conduct, including derogatory language, is contrary to the founding principles of the Constitution, in particular the values of non-racialism, dignity, and equality. |
| 6.2 | Racial harassment is unwanted conduct which can be persistent or a single incident that is harmful, demeaning, humiliating or creates a hostile or intimidating environment. Conduct that is calculated to induce submission by actual or threatened adverse consequences constitutes harassment although this is not an essential element of its definition. |
| 6.3 | Racial harassment includes direct or indirect behaviour which involve issues such as racist verbal and non-verbal conduct, remarks, abusive language, racist name calling, offensive behaviour gestures and racist cartoons, memes, or innuendos. |
| 6.4 | Racial harassment occurs where a person is subject to physical, verbal, or non-verbal conduct or other conduct based on race which undermines their dignity or which creates an intimidating, hostile or humiliating working environment for the recipient. |
| 6.5 | Conduct, whether verbal or non-verbal, involving racial innuendo stereotyping or other types of racial conduct, is assumed to be offensive and unwanted to any individual who may be exposed to the language or conduct. It should be assumed, consistent with the values of the Constitution that conduct of this type is unwanted and unacceptable and impacts negatively on the dignity of employees. The Constitutional Court has emphasised that when determining whether language or conduct is racial and derogatory, account must be taken of South Africa's history of institutionalised racial discrimination which legitimised racial prejudice and the impact of the legacy of racial discrimination on the present. The test to be applied in identifying whether language is racist is whether it is reasonably capable of conveying a racist meaning to the reasonable hearer.8 |
| 6.6 | The forms of racial harassment may include: |
| 6.6.1 | Abusive language and racist jokes, cartoons, or memes, including communication that amount to hate speech; |
| 6.6.2 | Racially offensive written or visual material, including on-line harassment; |
| 6.6.3 | Racist name calling or negative stereotyping impacting on a person's dignity; |
| 6.6.4 | Offensive behaviour in the form of open hostility to persons of a specific racial or ethnic group; |
| 6.6.5 | Subtle or blatant exclusion from workplace interaction and activities and other forms of marginalisation; and |
| 6.6.6 | Threatening behaviour, which intimidates a person or creates a hostile work environment. |
| 6.7 | Factors to be considered in Racial Harassment |
| 6.7.1 | Whether the language or conduct complained of is abusive; |
| 6.7.2 | Whether the language or conduct complained of impairs the dignity of the complainant(s); |
| 6.7.3 | Whether the language or conduct is directed at a particular employee or employees; |
| 6.7.4 | The extent and degree of abuse or impairment to a person's dignity; and |
| 6.7.5 | The impact of the conduct. |
| 6.8 | The test to be applied for Racial Harassment includes: |
| 6.8.1 | Racial Harassment must be assessed objectively with reference to the reaction of a normal or reasonable person in keeping with the values underlying the constitutional order. |
| 6.8.2 | To establish harassment based on race or ethnic or social origin, it has to be established on a balance of probabilities that the conduct complained of was related to race, ethnic or social origin, or a characteristic associated, or assumed to be associated with such group. An important factor for establishing racial harassment is whether a perpetrator would have spoken the words or behaved in the manner complained of towards the complainant. |
| 6.8.3 | Explicit racial conduct is assumed to be unwanted conduct. A relevant factor would be how the alleged perpetrator treats other persons not of the complainant's racial group or ethnic or social origin. |
| 6.8.4 | Whether language or conduct amounts to harassment depends on the circumstances of the particular incidence, including— |
| 6.8.4.1 | whether the conduct was persistent or harmful, |
| 6.8.4.2 | demeaning, impairing dignity, humiliating, or creating a hostile or intimidating environment; or |
| 6.8.4.3 | was calculated to induce submission by actual or threatened adverse consequences; and |
| 6.8.4.4 | whether the language and conduct is insulting, abusive and/or derogatory. |
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| 8 | Rustenburg Platinum Mine v SAEWA obo Bester and Others [2018] ZACC13; (2018) 39ILJ1503(CC; 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC); 2018 (5) SA 78 (CC) at paras 48-53. Other judgements which address the nature of racial discrimination in South Africa are Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC); Duncanmec (Pty) Ltd v Gaylard NO and Others 2018 (6) SA 335 (CC) and South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others 2017 (1) SA 549 (CC). |
