THE commentary that followed the recent Federal Constitutional Court (FCC) judgement dismissing the harassment claim of an NBP employee gives the impression that the court has rolled back the scope of the workplace harassment law so that it now covers only incidents of an ove­r­tly sexual nature, excluding conduct that amounts to gender-based discrimination. This is incorrect.

The correct position of the law now is this: allegations of workplace harassment prior to 2022 (which is when the Protection Against Harassment of Women in the Workplace Act was amended) must involve conduct of an overtly sexual nature to fall within the scope of the law. Actions that take place after the 2022 amendment are covered by the law not only if they are overtly sexual in nature, but also if they are rooted in gender-based discrimination. Let’s see why.

First, let’s look at the definition of ‘harassment’. Prior to January 2022, it was defined to cover “any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile, or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment”.

This definition was amended in January 2022 by adding the following: “discrimination on basis of gender, which may or may not be sexual in nature, but which may embody a discriminatory and prejudicial mindset or notion, resulting in........

© Dawn