Thèses sur le sujet « Sex discrimination in employment – Law and legislation – Italy »

Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.

A few months after having enacted a criminal statute creating the general offence of sexual harassment, the French Parliament enacted the Statute n° 92-1179 "relative a l'abus d'autorite en matiere sexuelle dans les relations de travail". In this statute, as in the criminal statute, the French legislator considers sexual harassment in a peculiar way, and departs from the North-American position on three points:
First, while American law and Canadian law understand clearly sexual harassment as a form of sex discrimination, the French approach is more ambiguous. It appears that the French legislator understands sexual harassment more as an infringement to freedom than a form of sex discrimination.
Second, the French legislator has defined sexual harassment in a more restrictive way than in North America. While American law and Canadian law prohibit hostile harassment and sexual harassment by colleagues, these forms of sexual harassment are not prohibited in French law. Finally, on the question of the employer's liability, the French approach is more "timid" than in American law and in Canadian law.
The French legislator has justified its more restrictive approach to the problem of sexual harassment in comparison with the North-American position by two arguments: the fear of the "American 'drift'" and the peculiarity of the relationships between women and men in France. However, it is argued that the choice of the French legislator is not convenient because it leaves a significant number of victims outside the scope of the law, and is not clear enough on the employer's obligations. Furthermore, it is maintained that both arguments of the legislator are more caricatural than real.

Previously, our workplaces were characterised by serious hardships emanating from labour laws which did not always cater for all areas of the employment relationship. South African female employees were without a clear legitimate remedial right precluding any severe violation and infringement to their fundamental rights resulting from their pregnancy; a task they did not opt for in the first place, but was instead, naturally imposed on them as a result of their gender category. Undoubtedly, many female employees were victims of unfair discrimination. The legislature therefore saw it fit to democratise the workplace by making rapid statutory interventions. As a result, a number of significant changes in various spheres of our labour laws were brought in. Amongst the greatly notable valuable changes was the introduction of the Employment Equity Act 55 of 1998. This piece of legislation has generally reformed our industrial society by bringing in the elimination of unfair discrimination and thereby enhancing the principle of equity in the workplace. The act has further touched a place within hearts of female employees for fear of discrimination as a result of their pregnancy status or any reasons related to their pregnancy. The act further codified Industrial Court decisions that were already established under the discrimination law jurisprudence from the Labour Relations Act 28 of 1956. The application of the provisions of the Act has made the employment relationship no longer to be a comfort zone for employers. These general changes to the law also impact on the dismissal law regime. The purpose of this treatise is to give an overview of the applicable legislation and contributions made by the Labour Courts in developing pregnancy dismissal and discrimination law. The Labour Courts have handed down few judgements that have helped in clarifying the provisions of both the current Labour Relations Act and the Employment Equity Act around the topic. One should hasten to say that this has never been a smooth process by the courts. It is further shown in this treatise that some of the court decisions were not well accepted in the light of other important considerations, such as the equality provisions of the Constitution. For the purpose of effectively dealing with this topic, this treatise contains a discussion of the historical context of discrimination law in the form of common-law position, and the discrimination law before the Bill of Rights and the Constitution. It then endeavours to identify the legislative provision of the Act when it comes to discrimination law provisions. At the same time the important court decisions that were made are identified and examined.

Sexual harassment is an ever increasing drain on the resources of the modern employer, as well as serving to take up much time in terms of legal battles and court cases. The concept of sexual harassment has undergone much revision over the past decades, and South Africa is now firmly committed to the eradication of this problem. The Constitution protects and enshrines important rights like dignity, equality and the right to fair labour practices. These are further defined and protected through the application of various statutes, including the LRA, EEA, PEPUDA and the revised Code of Good Practice. In terms of statutory liability, the employer will be liable for the harassment of its employees, unless it takes a proactive stance and implements comprehensive sexual harassment policies. In this way it will escape liability. The common law vicarious liability of the employer cannot be escaped as easily. The entire concept of the law of delict is to remedy harm suffered. In terms of the common law, employers will be held vicariously liable for the harassment of their employees if it can be shown that the harassment occurred within a valid working relationship, if the harassment actually occurred through a delict, and if the act occurred within the course and scope of employment. The best way for employers to minimize their liability for sexual harassment is the implementation of training and educational policies that serve to make employees aware of what is permissible in the workplace. This will aid the employer in showing that it has done everything possible to reduce the risk of harassment, which will in turn serve to reduce the employer’s liability. To protect against the risk of expensive litigation, many employers are now investigating the matter of liability insurance – they would rather pay increased premiums than suffer alone when their employees take legal action against them. Sexual harassment is a problem that can only be solved through a concerted effort on the part of the legislature, judiciary, employers and employees. Together, these parties must ensure that all of those involved in the world of work are aware of the problem of harassment, as well as taking steps to educate and train employees so as to prevent it. Only in this way will we be able to take action to reduce this terrible problem in our country.

Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.

A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.

This study provides a feminist analysis of protective labor legislation in the Supreme Court case of UAW v. Johnson Controls, Inc. History of protection rhetoric and precedented cases leading up to UAW are provided. Using a feminist analysis, this study argues that the victory for women's labor rights in UAW is short lived, and the cycle of protection rhetoric continues with new pro-business agendas replacing traditional justifications for "protecting" women in the work place. The implications of this and other findings are discussed.

Given their potential to negatively impact men's goal of staying in office, can gender quotas be aligned with the preferences of male legislators who adopt the policy? In other words, does the rapid spread of gender quotas worldwide challenge notions of the rationality of legislators as career-driven individuals? These are the main questions that drive this thesis. To answer these questions, I develop a prospect theory-based framework that accounts for how electoral security and political ambition impact legislators' behaviour in influencing the strength of gender quota designs. I argue that, faced with growing pressures to adopt gender quotas, male parliamentarians engage in the risk-taking process of assenting with gender quotas, meanwhile seeking to minimize the potential costs of the policy to their future careers by actively weakening quota designs. To evaluate the plausibility of my theory, I employ a series of multi-method and multi-level analyses presented across five substantive chapters, each of which is respectively based on: 1) a cross-sectional analysis of Latin America countries; 2) an elite survey experiment with Brazilian state legislators; and, in-depth process tracing of the cases of gender quota adoption in 3) Costa Rica; 4) Brazil; and, 5) Chile. The work makes three main contributions. Firstly, although previously identified, the resistance of male legislators towards gender quotas had never been systematically analysed in a comparative manner; focusing on the behaviour of male incumbents is thus a relevant contribution. Secondly, although various authors have provided explanations for the origins of gender quota adoptions, no work had ever comparatively assessed sources of the variation in gender quota designs. Thus, I move the study of gender quotas beyond the binary choice of adoption. Thirdly, I show that the static assumptions of endogenous institutionalism need to be modified by the introduction of risk, which can only be achieved by integrating the insights of prospect theory.

This thesis analyses the gender dimensions of work-life balance policies in the UK. It focuses on three related questions: firstly, to what extent are work-life balance policies framed by 'diversity'; secondly, how does this impact on the conceptualisation and implementation of work-life balance policies (in government and in organisations); and thirdly, what are the implications for gender equality? Through analysing published research, the UK Government's work-life balance agenda and data generated from three selected case study organisations, the prominent dimensions of diversity that shape the conceptualisation and implementation of work-life balance policies are presented. This thesis argues that the concept of diversity - as defined by the feminist literature - offers the potential to progress gender equality through overcoming the same-difference dichotomy, and by recognising multiple aspects of identity. However, this theoretical potential is not necessarily reflected in practice. With the emphasis on the individual worker and choice, diversity has been primarily defined as 'managing diversity', and has a significant affect on how work-life balance policies have been applied in both government policy and organisational practice. The UK Government states that work-life balance policies are meant to provide everyone with opportunities to balance work with other aspects of life. The current policy framework targets parents and in particular mothers, potentially limiting the choices that men and women have to 'work' and 'care'. Locating work-life balance policies within the context of 'managing diversity' supports and facilitates women's employment, but does not necessarily challenge fundamental gender disparities such as occupational segregation and gender pay gaps. Analysis of the UK Government's current agenda and organisational case studies show that despite progressive equality, diversity and worklife balance agendas, work-life balance policies are limited in challenging persistent structural gender inequalities.

This dissertation focuses on indirect discrimination against women in employment. It briefly examines the causes of discrimination against women in the workplace. Further it explains the concept of indirect discrimination by tracing its origins in the United States of America and analyses the development of the law of indirect discrimination in the United States until the introduction of the Civil Rights Act of 1991. This analysis involves an examination of the elements involved in proving an indirect discrimination claim and the problems experienced in doing so. The British indirect discrimination laws and cases are then examined to the extent to which Britain deviates from the American approach. The comparative law discussion will indicate the problems that have become an inherent feature of indirect discrimination cases. The problematic nature of proving indirect discrimination necessitates a discussion of the common types of conditions and requirements that indirectly discriminate against women. It is against this background that the present South African legislation on indirect discrimination in employment is analysed and case developments reviewed. Finally, the proposals of the Green Paper on Employment Equity are examined. The recommendations for the introduction of a comprehensive discrimination statute; the introduction of an independent commission; and the formulation of a Code of Good Practice that will provide guidelines to employers, are supported. Further, recommendations are made for a flexible discrimination legislation that provides a broad legal framework which allows for development of the law; the necessity to address issues regarding administration and costs involved in implementing this legislation; the introduction of additional funtions of the independent commission relating to training and access to the law; and the adoption of a statutorily enforced affirmative action policy that addresses the inequalities faced by women in employment.
Thesis (LL.M.)-University of Natal, Durban, 1998.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013
Like other forms of prohibited discriminations, discrimination on the basis of sexual orientation has become an area of concern in the workplace. The law prohibits discrimination in whatever form and declares it unlawful to discriminate people on the basis of sexual orientation. In this work, South African anti- discrimination provisions on the basis of sexual orientation will be emphasized, whereas foreign countries will only be referred to for the sake of comparative analysis. Discrimination of lesbian, gay, bisexual, transsexual and homosexual people (LGBTH) in the workplace is manifested by harassment and constructive dismissal through homophobia. Homophobia is a psychological concept which refers to the hatred of people after declaring their gay, lesbian or homosexual identities. This study reveals homophobic practices towards homosexuals as if they are not beneficiaries of contemporary democratic laws and dividends of democracy enshrined in Chapter 2 of the RSA Constitution of 1996 and Chapter 2 of the Employment Equity Act (EEA) 55 of 1998. To this, the research revealed an interesting corroboration in section 9(4) of the RSA Constitution of 1996, and section 6(1) of the EEA 55 of 1998, which provide that no person may unfairly discriminate another on the grounds of sexual orientation. The study has also revealed that among others, employment rights of people in South Africa and in foreign countries are being violated on the basis of sexual orientation. In most case laws, people who disclosed to their employers, that their gender identities are different to what was expected as straight genders and those who informed their employers about their intentions to undergo sex change surgeries are being hired and fired. The study also proved a point that when it comes to sexual orientation exclusion and discrimination, the same vulnerable groups of gays and lesbians are as well caught up in practices of sodomy and sexual harassments. Therefore, the remedies suggested by this research will also apply to everyone including gays and lesbians. To avoid controversy and issues, statutes and decided court cases have been stated as they are, in chapter 4 of this research, for the sake of comparative analysis in order to unravel the existing state of affairs through approaches from different jurisdictions.

LL.D.
This thesis critically evaluates the position of pregnant women (and women who have recently given birth) in the context of South African Labour Law and social security law, from both a comparative and a South African perspective. The fact that women fall pregnant and give birth to children, while men do not, raises issues of theoretical and practical importance in regard to equality issues. Pregnancy has historically been both the cause of and the occasion for the exclusion of many women from the workplace because of the practical difficulties many women face in reconciling the demands of paid work with family responsibilities – although there is no logical reason why women’s giving birth to children necessarily means that they should have primary responsibility for childcare. The underlying premise which underpins the subject matter of this thesis is that pregnant women are unfairly discriminated against in the workplace. While it cannot be denied that men and women are different and that the biological fact of pregnancy is a state unique to women, this “difference” has resulted in gender discrimination, and, more germane to this thesis, in pregnancy discrimination in the jurisdictions to be considered, namely, the United Kingdom, the European Union, SADC and South Africa. This thesis concentrates on various issues pertaining to pregnancy and maternity protection and emphasises the seemingly irreconcilable dichotomy between the desire to recognise and accommodate women’s unique role as child-bearers and the desire to achieve parity between the sexes in regard to conditions of employment, remuneration and general benefits. The central dilemma is whether women can be treated as equal to men in regard to opportunities, entry to the workplace and remuneration, on the one hand, and yet be treated in a special way when it concerns childbearing and childrearing, on the other. In this thesis it is argued that men and women are different and that social justice cannot therefore be achieved by equal treatment. In facing this challenge, legislatures and courts have become ensnared in the dichotomy of equality and distinction, and the question considered here is whether South Africa is fulfilling its constitutional and international obligations regarding the equal treatment, and the granting to them of equal opportunities and reasonable accommodation. This thesis develops an appropriate and relevant paradigm for pregnant women in the workplace. It identifies and highlights the existing deficiencies and lacunae in the South African legal system inherent in both labour law and social security law, and develops proposals for the possible amendment of the existing legislative framework by drawing largely on international, supranational, foreign and regional jurisdictions and by critically evaluating the current South African maternity terrain, particularly in the light of South Africa’s developing constitutional jurisprudence.

Despite the extensive research conducted on sexual harassment, very little work has focused on the legal and psychological constructions of women's resistance to sexual harassment. In exploring the legal and psychological constructions of women's resistance to sexual harassment, we are confronted with salient issues pertaining to the determination of the welcomeness requirement which call for a reflection. A key characteristic of sexual harassment is that it is unwanted by the recipient. It is for each person to decide what behaviour is acceptable to them and what they regard as offensive. Thus, although there is general agreement about what can constitute sexual harassment, the experience of sexual harassment is subjective in nature and the precise quantification of workplace sexual harassment is problematic. The present study aims to: (a) identify the reasoning/history behind the "unwelcomeness/unwanted" requirement, (b) assess the reasonableness of· the requirement of "unwelcomeness/unwanted" conduct, taking into account the various pieces of legislation and case law, (c) determine how the courts have interpreted this requirement and what factors are looked at, (d) determine whether the test is subjective or objective, (e) identify the struggle and debilitating effects sexual harassment has on women in the workplace. The results of this study will assist in gaining knowledge and understanding of the concept of "unwelcomeness/unwanted" conduct in sexual harassment cases and the effects it has on the victim which will go a long way in assisting management in any business to effectively implement strategies and disciplines to manage the problem of sexual harassment in the workplace.
Private Law
LLM (Labour Law)

The end of apartheid in South Africa in 1994 brought with it the task of redressing past discriminatory practices. The Employment Equity Act (No. 55 Of 1998) passed in 1998 stipulated that designated employers implement affirmative action in order to provide equal employment opportunities to all including the previously disadvantaged or designated groups who are primarily blacks, the disabled and women (Charlton and Niekerk, 1994:. xxii). Affirmative action is not something to be done for political expediency and fear of legislation alone. Shifting markets and consumer needs require demographic representation at all levels in the organization. Addressing the incredible shortage of available skills, compounded by the tendency not to grant equal employment to designated groups who already have skills, suggests the need for demographic considerations in terms of long-term employment needs. Bringing human resources up to world-class standards will mean addressing the deficiencies that have emanated from the apartheid system. This study focuses on the relationship between gender, equality and the concept of affirmative action. The purpose of this study is to investigate the perceptions of South African male broadcasters towards affirmative action especially where the policy is targeted towards women. Male broadcasters at SABC KwaZulu-Natal are used as case studies. South African Broadcasting Corporation (SABC) not only embraces affirmative action but also reports on it. Previous studies on affirmative action in media institutions tend to focus on women and thus this study uses men as case studies to make this area of research more complete. South African men are not a homogenous category. There are class, racial, religious, language, urban/rural, cultural and age lines of division among them (Nzimande and Sikhosana, 1996: 82). This being the case, the study investigates the different perceptions held by South African male broadcasters of different races concerning gender-based affirmative action. Issues discussed in this study include: • Understanding of the concept affirmative action • Need for the implementation of affirmative action • Perceptions ofmen towards work Men and power in organizations • Perceptions towards management • Perceptions towards female broadcasters • Perceived factors that hinder women from upward mobility • Possibilities for informal discrimination Studies on affirmative action have more frequently than not been examined in the context of feminist theories, for example, Susan Manhando's study (1994), 'Towards affirmative action: Issues of race, gender and equality at the SABC: Case studies of Natal women broadcasters' and Farhana Goga's (2000) 'Towards affirmative action issues of race and gender in media organizations: A study on South African media organizations,' to cite but two examples. This study moves beyond this rubric to include both patriarchy and masculinity theories as part of the theoretical framework upon which data analysis is interpreted and discussed. I see the findings of this research as the basis for further investigation into perceptions of South Africans from different races towards affirmative action policy.
Thesis (M.A.)-University of Natal, Durban, 2002.