The Prevention and Combating of Hate Crimes and Hate Speech, Act No. 16 of 2023 (Hate Crimes Act) came into law on 14 May 2024 and certainly is going to play a pivotal role in addressing discriminatory practices and behaviours in various spheres of society, including the workplace. This article explores the provisions of the Act and its implications for the workplace in South Africa.
The Hate Speech Act:
The Hate Crimes Act aims to protect the South African constitutionally enshrined rights of human dignity, equality, and the right to freedom and security. The Act criminalises actions or speech motivated by prejudice or intolerance of one or more characteristics or perceived characteristics of a victim. These characteristics are listed in the Hate Crimes Act.
The Act defines a hate crime as conduct that is motivated by prejudice and intolerance on one or more of the following grounds:
- Albinism
- Ethnic or social origin
- HIV or AIDS status
- Gender
- Nationality, migrant, refugee, or asylum seeker status
- Race
- Religion
- Sex
- Sexual orientation, gender identity or expression, or sex characteristics
- Skin colour
Hate speech refers to a person who intentionally publishes or propagates, advocates, shares or communicates anything to one or more persons in such a manner that it could reasonably be interpreted as a clear intention to be harmful or to incite harm, and to promote or propagate hatred based on the listed grounds above.
Conviction of these crimes will be punishable by fines and/or imprisonment, depending on the severity of the offence. Victim impact statements will be considered in court, which will assist in detailing the consequences of the offence on the victim.
Impact on the workplace:
At face value, the Hate Crimes Act does not refer to any employment legislation, but one has to read the Hate Crimes Act together with the Employment Equity Act 55 of 1998 (EEA), and more specifically the Harassment Code published under the EEA.
The EEA expressly prohibits unfair discrimination against an employee based on 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 any other arbitrary ground.
It is well known that in terms of Section 60 of the EEA, an employer may be held vicariously liable for acts of discrimination, sexual or racial harassment, or workplace bullying committed by its employees. This will be in addition to any claim that the victim could have against the employer under the common law.
In a recent case (not yet reported at the time of writing this article) between Ms Tilana Louw and Netcare, Judge Ilse van Rhyn granted an amount of R300,000 in damages against the employer Netcare, because it turned a blind eye to Ms Louw’s complaints about the harassment and bullying she had to endure from a shouting and aggressive medical specialist who repeatedly verbally assaulted and humiliated her.
There is a clear overlap between the Hate Crimes Act and the EEA in that certain hate crimes or hate speech conduct can potentially also constitute harassment in terms of the EEA code, and vice versa.
The test for harassment in terms of the EEA code and the test for hate crimes and hate speech in the Act are different, but the bona vide defences in relation to hate speech, if relevant, may potentially be raised by an employee in disciplinary proceedings that deals with verbal harassment or discrimination in the workplace.
The criminalisation of hate crimes and hate speech may assist an employer in taking decisive disciplinary action against an employee whose conduct is covered by the Hate Crimes Act.
The duty to act decisively weighs even heavier now on employers as the conduct, stipulated in the Hate Crimes Act, may severely impact the employer’s reputation and detract from a harmonious working environment.
Steps employers need to take:
Employers need to consider these aspects to align a safe and respectful working environment with the serious consequences of the Hate Crimes Act. Employers should therefore integrate the Act’s provisions into existing workplace policies to ensure that hate crimes and hate speech are clearly defined and prohibited.
• The employer should conduct regular training sessions to educate employees about the Act, the implications thereof, and the
importance of maintaining a respectful working environment.
• Clear reporting mechanisms for the employees to report incidents of hate crimes or hate speech confidentially must be established.
• Employers need to develop thorough investigation procedures to address allegations.
• The procedures must be fair, impartial, and timely and set out specific disciplinary action that will be taken against employees who
violate the Hate Crimes Act provisions contained in a workplace policy.
• Provision should also be made for the support of victims of hate crimes and hate speech, which can include counselling services and
assistance with legal processes if necessary.
Failure to act after an employer becomes aware of an incident, whether under the EEA or in terms of the Hate Crimes Act, may result in vicarious liability and serious reputational damage. If an employer can prove that it complied with its statutory obligations and it did all that was reasonably practical to ensure that the offending employee would not engage in conduct contravening the Hate Crimes Act or the EEA, then the employer will not be held vicariously liable for the conduct of the offending employee.
An employer has a legal duty to take proactive and legal steps to prevent and eliminate all forms of harassment, hate speech, or hate crimes in the workplace and where such incidents occur, to take the necessary steps to deal with the incident swiftly and fairly, and to assist the victim. The employer should therefore take legal advice to ensure that its policies and practices comply with the Act and that it deals with any allegation of harassment under the EEA code and hate crimes and hate speech under the Hate Crimes Act.
REFERENCE LIST:
1. Prevention and Combatting of Hate Crimes and Hate Speech Act 16 of 2023
2. Employment Equity Act 55 of 1998 together with the Harassment Code
3. “New Legislation: The criminalization of hate offenses and the workplace” – Employment Law Alert. CDH Incorporated - dated 13 May
2024
4. Understanding the impact: President signs groundbreaking Prevention and Combatting of Hate Crimes and Hate Speech bill – EOHCB
National - dated 14 June 2024
5. Workplace harassment – Obligations under the New Code of Good Practice – Judith Griessel
6. South African President approves bill criminalizing Hate Crimes and Hate Speech – Jurist News – Jingwen Liu – dated 10 May 2024
7. ChatGPT
8. News Article “Netcare hoes R300 000 na dokter vrou met dikderm gooi” Rapport 21 July 2024
WRITTEN BY GERHARD SMIT
Gerhard Smit is a director at Miller Bosman Le Roux Attorneys.
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.