Deborah Zalesne

The Effectiveness of the Employment Equity Act and the Code of Good Practice in Reducing Sexual Harassment

ABSTRACT South Africa has recently taken a progressive stand on sexual harassment as one of only a few countries to prohibit sexual harassment directly through legislation. The Employment Equity Act 55 of 1998 deals primarily with affirmative action, but is also groundbreaking in the area of sexual harassment. This Act, with its accompanying Code for handling sexual harassment cases, can be considered an international model because of its comprehensive approach to and ambitious treatment of sexual harassment, specifically defining the type of conduct that is prohibited, and providing detailed procedures to address the problem and prevent its recurrence. Although the Act and accompanying code represent an important starting point for combating sexual harassment, political, social, and economic progress are not necessarily close behind. A variety of factors can facilitate or retard the effectiveness of anti-harassment objectives. The laws effect on social reform might be questionable, given the endemic gender violence, the legacy of apartheid, the level of economic development, the political power of the trade union movement, and the extent of unemployment. Since the end of apartheid, South African women have made great gains in representation in government, law and society. Law, certainly an important mechanism for change, has been successfully used to remove the most blatant forms of discrimination against women. But women are at a critical juncture. Gender equality is central to the continued development of democracy in South Africa, and many women have yet to feel the effect of the new laws. Because of lack of education and resources, a majority of women have not been able to take advantage of the new legislation, and because of cultural notions about women and institutionalized gender stereotypes, womens experiences and testimony have been largely discredited and devalued. All laws are enforced and interpreted by individuals — equality will not be a reality for most women until gender stereotypes no longer inform the thinking of the judiciary, prosecutors, police and the larger society.

Racial Inequality In Contracting: Teaching Race As A Core Value

Today’s students live in an era that dominant social voices declare to be a “post-racial society.” Issues of “discrimination,” it follows, are simply isolated incidents easily addressed by the panoply of existing civil rights laws. This belief creates expectations on the part of first-year law students who may dismiss or ignore the existence of structural racism, sexism, and classism. The law not only creates structures of subordination, it also makes them invisible. Revelation of the subordinating effects of legal rules is an important first step in legal education.The apparent neutrality of contract law in particular masks the distributive effects of legal rules. Contract is an area of private ordering, but it is courts that invalidate or legitimize the use or allocation of power between or among parties to a contract. Unspoken assumptions about power — who has it, who may use it, and how it may be used — are embedded in contract law and theory. These assumptions may conceal bias, stereotypes, and cultural preferences in a court’s final decision. An analysis that presumes neutrality on the part of the court and autonomy on the part of the parties overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identity of the parties. A “neutral” free market system tolerates certain pockets of discrimination in contracting which are, in turn, endorsed by the law in the name of freedom of contract.This Article addresses the importance of incorporating such discussions about identity in the first year core curriculum. It offers specific materials and techniques for doing this in a contracts class, with emphasis on the necessity and the value of grounding theoretical analysis squarely in the instruction students receive in legal reasoning. The Article proposes that issues of identity should be incorporated into the classroom not only when the parties in the cases are people of color, and not simply as a politically correct exercise, but pervasively throughout the semester as a way of advancing students’ legal reasoning skills and understanding of legal doctrine. This approach should improve the law school experience for most students and produce lawyers who are more capable of practicing law holistically.