Employment Equity Act, 1998 (Act No. 55 of 1998)

The South African Constitution protects the right to dignity, equality, and fair labour practices in terms of the Bill of Rights.  South Africa is committed to the elimination, prevention, and management of all forms of harassment, including gender-based harassment in the workplace with the aim to create safe workplaces that are free of harassment.

The Employment Equity Act, 1998 (EEA), regulates equity in the workplace. Section 6(1) of the EEA prohibits unfair discrimination directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, or on any other arbitrary ground.

Section 6(3) of the EEA states that 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 subsection 6(1) of the EEA.

The EEA constitutes one of the key legislative and policy interventions within the ethos of South Africa's Constitution to achieve equity in the work environment by promoting equal opportunity and fair treatment in employment through the elimination of unfair discriminatory employment policies, procedure and practices, which result in inequalities in the workplace. Section 54 of the EEA empowers the Minister of Employment and Labour to issue Codes of Good practice on the advice of the Commission for Employment Equity (CEE).

This Code of Good Practice is intended to address the prevention, elimination, and management of all forms of harassment that pervade the workplace.  It is guided by the ILO Convention 190 and its Recommendation concerning the elimination of Violence and Harassment in the World of Work, 2019; the Discrimination (Employment and Occupation) Convention 111 of 1958 (Convention 111); and the ILO Convention 151 relating to Occupational Health and Safety.

The EEA is one of several Acts that are relevant to the implementation of South Africa's obligations in terms of Convention 190 to prevent violence and harassment in the world of work.

South Africa regards all forms of harassment as a form of unfair discrimination and constitutes a barrier to equity and equality in the workplace.  Therefore, all forms of harassment such as sexual harassment; gender-based violence and harassment; bullying; and racial, ethnic or social origin harassment must be eliminated.  It is acknowledged that harassment may include physical abuse, psychological abuse, emotional abuse and sexual abuse.

Harassment also includes the use of physical force or power, threatened or actual, against another person or against a group or community, which either results in, or has a high likelihood of resulting in social injustice, economic harm, injury, death, physical and psychological harm, mal-development, or deprivation.

All forms of harassment against women, men and LGBTQIA+ and vulnerable persons in the workplace is an abuse of power. Harassment particularly affects workers in the most vulnerable work situations, who have poor access to labour rights such as freedom of association, collective bargaining, decent work, non-discriminatory practices and access to justice.