Abstract

Currently, sexual harassment in the workplace is treated as an exceptional form of unfair discrimination on the basis of sex, gender or sexual orientation; and more generally, harassment, if it is based on a listed or analogous ground, is treated as a form of discrimination, which is prohibited in terms of the Employment Equity Act. In recent developments, the International Labour Organisation’s Convention on Violence and Harassment in the World of Work 190 of 2019 and South Africa’s Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020 introduce the term ‘violence and harassment’ as an organising concept for the many forms of unacceptable behaviour in the workplace that cause, or are likely to cause, harm (physical, psychological, sexual or economic). While the concept of ‘violence and harassment’ includes sexual harassment, it is not limited to conduct that amounts to discrimination. In addition to prohibiting forms of violence and harassment, Convention 190 requires the adoption of an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. In this article we consider the implications of these developments for South Africa. In particular we argue that the current legal framework establishes a fragmented and complex system for resolving sexual harassment disputes; and we consider the impact on this system if the organising concept of violence and harassment were to be adopted, with violence and harassment prohibited within an inclusive and integrated approach. We caution that, in the absence of carefully crafted legislative revisions to the current legal framework, the system may become even more complex and fragmented.