PATRIARCHY AND UNPAID WORK AS BARRIERS TO TOP-LEVEL FEMALE APPOINTMENTS: ARE SOUTH AFRICA’S LABOUR LAWS ENOUGH NOT TO KEEP A GOOD WOMAN DOWN?*

SUMMARY The South African legal framework includes multiple laws and instruments aimed at promoting gender equality, providing for females to be sufficiently represented at all levels of the labour force. Some progress has been made. The country’s female labour force has grown exponentially over the past twenty years, the position of chief executive officer (CEO) of the Johannesburg Stock Exchange (JSE) is held by a female, and women constitute 46 per cent of members of Parliament. More broadly, however, true gender equality is still far off in terms of female representation in top-level positions. In 2019, females represented only 3.31 per cent of CEOs nationwide, despite making up 51 per cent of the South African population. The country has produced only one (now retired) female CEO among the top-40 JSE-listed companies. This article explores the state of gender equality in the South African workplace by first examining the international and regional instruments and national laws adopted to steer the country towards a gender-equal labour force. Upon establishing that the root of the problem does not appear to be a lack of legislative provision, the focus shifts to patriarchy and unpaid work as ongoing barriers to female employment, as well as their potential causes. Despite the extensive legal framework advocating for gender equality, these two barriers are found to persist and are closely intertwined. As females continue to be subjected to male domination in the form of patriarchy, they are automatically relegated to the realm of unpaid work, carrying a disproportionately heavy Policy Framework for Women’s Empowerment and Gender Equality to achieve genuine equal female employment. This could include earmarking funds to allow more females to stay in school and educate society on the value of female employment and advancement at work and the need to break away from entrenched social norms.

PATRIARCHY AND UNPAID WORK AS BARRIERS TO TOP-LEVEL FEMALE APPOINTMENTS: ARE SOUTH AFRICA'S LABOUR LAWS ENOUGH NOT TO KEEP A GOOD WOMAN DOWN?* SUMMARY The South African legal framework includes multiple laws and instruments aimed at promoting gender equality, providing for females to be sufficiently represented at all levels of the labour force. Some progress has been made. The country's female labour force has grown exponentially over the past twenty years, the position of chief executive officer (CEO) of the Johannesburg Stock Exchange (JSE) is held by a female, and women constitute 46 per cent of members of Parliament. More broadly, however, true gender equality is still far off in terms of female representation in top-level positions. In 2019, females represented only 3.31 per cent of CEOs nationwide, despite making up 51 per cent of the South African population. The country has produced only one (now retired) female CEO among the top-40 JSE-listed companies. This article explores the state of gender equality in the South African workplace by first examining the international and regional instruments and national laws adopted to steer the country towards a gender-equal labour force. Upon establishing that the root of the problem does not appear to be a lack of legislative provision, the focus shifts to patriarchy and unpaid work as ongoing barriers to female employment, as well as their potential causes. Despite the extensive legal framework advocating for gender equality, these two barriers are found to persist and are closely intertwined. As females continue to be subjected to male domination in the form of patriarchy, they are automatically relegated to the realm of unpaid work, carrying a disproportionately heavy burden of child-rearing and other domestic responsibilities. Both barriers are fuelled by deep-rooted social norms and cultural traditions, which are notoriously difficult and time-consuming to change. While holding out hope for a gradual shift in people's thinking, the article concludes with a few recommendations. These include a more holistic approach to the implementation of substantive equality by the South African courts not only to regard females as members of a designated group, but also to consider the full extent of the disadvantages they face in everyday life. Moreover, the government is urged to make better use of the lame-duck National

INTRODUCTION
The female labour force in South Africa has grown exponentially over the past twenty years, primarily due to equity legislation, greater access to education, 1 and more job opportunities. 2 Yet, female representation in high-powered positions seems to be lagging behind.
In 2019, females represented only 3.31 per cent of chief executive officers (CEOs) nationwide, 3 despite making up 51 per cent of the South African population. 4 The country's only female CEO of a top-40 Johannesburg Stock Exchange-listed company, Dr Maria Ramos, vacated her position in that same year. In 2018, 52.9 per cent of South Africans who had completed a tertiary qualification were female, but women occupied roughly only one in three managerial positions. 5 At top-management level, female representation was estimated at a mere 22.9 per cent, 6 and only 33.8 per cent at senior management level. 7 One exception is Parliament, where over 45 per cent of members are females. 8 Generally, females tend to be found in lower-ranking jobs such as domestic workers, clerks, or informal traders. 9 At the same time, they continue to perform the majority of non-remunerated work at home. 10 While the type of jobs commonly held by women may partly be ascribed to personal choice, this article explores two of the possible societal barriers 11 that may * The authors would like to thank the anonymous peer reviewers for their helpful comments and suggestions. Of the many scholarly attempts at providing a definition for gender equality over the years, De Waal 13 possibly describes it best: "[G]ender equality refers to females having the same opportunities in life as men, including the ability to participate in the public sphere. It assumes that once the barriers to participation are removed, there is a level playing field." Gender equality may also be understood by defining its polar opposite, gender discrimination, which, according to Steyn and Jackson, entails conferring an unfair (dis) advantage on members of a particular gender compared to their differently gendered peers. 14 In the workplace, the authors continue, this is perpetrated through employers' actions or activities. 15 Moreover, gender equality encompasses substantive equality -a principle embraced by South African law 16 -aimed at eradicating disadvantage based on gender, among others. 17 Achieving this type of true gender equality in employment depends on various factors, including good governance, 18 corrective tools such as affirmative action and, to some extent, gender quota legislation. 19

Why female representation at senior levels is a good idea
Hills argues that "appointing more females to positions of leadership and boards [is] smart business, is good for business, and is a proactive image and reputation builder". 20 Indeed, research has shown that companies with higher female representation perform better financially than those whose talent pool is low on females; 21 leveraging female talent can improve organisational competitiveness and outcomes. 22 The International Monetary Fund 23 has also emphasised females' contribution to overall economic growth: "Greater gender equality boosts economic growth and leads to better development outcomes." A study launched in the United States in 2002 set out to investigate the financial performance of companies with female incumbents in the positions of chief financial officer (CFO) and CEO from 2002 until 2019, under the banner of #Changepays. 24 The results, released in mid-October 2019, revealed that females had added $1.8 trillion more to their companies than their male counterparts. 25 This is confirmed by the fact that Fortune 500 companies, with more females on their boards, financially outperform companies with lower female board representation. 26 Gender-diverse teams, including in South Africa, show higher profit and sales margins than all-male teams. 27 The World Economic Forum's Global Gender Gap Report 2018 ranks South Africa nineteenth out of 149 countries in terms of overall gender gap equality. 28 Yet this relatively high ranking is largely thanks to the country having closed much of its gender gaps in terms of the criteria "Health and survival" and "Political empowerment". In terms of economic participation, though, South Africa is placed in a relatively low 117 th spot regarding gender wage equality. 29 Turning this statistic around will benefit the country, as nations that manage to improve their gender gap equality ratings have been shown to record economic growth of as high as 35 per cent. 30 An increase in monetary gains at corporate and national levels is not the only reason why females should be better represented at a senior level. Women's leadership style may also see organisations grow by leaps and 20 bounds. Female leadership theories supported by mixed empirical evidence 31 suggest that females may be better leaders than men 32 because of their relational skills. 33 More women than men are thought to possess much-needed leadership qualities such as "be[ing] sensitive, attuned, and responsive to moments of differences, and feel[ing] responsible for working with those differences". 34 More specifically, in the African context, female leadership styles are more closely aligned with transformational leadership, 35 having bound societies together and demonstrated evident power in traditional, precolonial African society. 36 Moreover, females' proper development and adequate appointment in high-ranking positions can motivate and encourage more significant commitment among lower-level female employees. 37 Seeing other females in management positions is believed to make lower-ranked women feel more accepted in the organisation, which leads to higher female staff retention, higher job satisfaction and, ultimately, better organisational performance. 38

We are not there yet: Female labour force participation and education in South Africa
There is no denying that true gender equality in South Africa is some way off, as reiterated by President Cyril Ramaphosa in his 2020 Women's Day address when he said: "[W]e know that the lived reality for millions of South African women is very different to the promise contained in our Constitution. We know that millions of South African women still live in conditions of poverty and unemployment." 39 Education and female participation in the labour force are closely and intricately related 40 and directly feed into overall gender equality. 41 In a study for the International Labour Organisation (ILO), Verick found that labourforce participation was but one part of the problem of gender inequality in employment and strongly advocated for both secondary and tertiary education for females to bring about gender parity, especially in developing countries. Under apartheid South Africa, Black females, in particular, faced several barriers to education. They were systemically excluded from educational opportunities. 43 Many were denied the right to study, 44 due to incarceration. In fact, even after serving their sentences, they were banned from entering any place of instruction. 45 The unsurprising result was low levels of education and a slow pace of economic growth among this group. 46 With the dawn of democracy in 1994, the government took some essential steps to improve access to education, including introducing the South African Schools Act. 47 The Act stipulates that education must be made accessible to all and must be free from discrimination, regardless of learners' gender. 48 The Bill of Rights too imposes a duty on the government to make education available and accessible to all South Africans. 49 Yet, as recently as 2013, a school was found to discriminate against a female learner, expelling her from school for being pregnant and ultimately violating her right to primary education. 50 The 2018 General Household Survey showed that many females aged between seven and eighteen years were not receiving any form of education, due to family responsibilities and insufficient finances. 51 Altogether 14.4 per cent of these females, compared to only 0.2 per cent of their male counterparts, stated responsibilities such as childminding as the reason for not attending school. 52 Other sources echo this, citing obligations towards their families, finances and pregnancy 53 as the primary reasons why more females than males remain unschooled or are unlikely to pursue a higher degree. Nevertheless, most of the females who manage to enter schooling end up thriving. Female learners account for the majority of those who successfully complete Grade 12. 54 Females are also more likely to enrol for tertiary education than their male peers. 55 Still, however, when selecting candidates for senior positions, employers are 35.8 per cent more likely to prefer men. 56 Labour-force participation rates for the country reflect this. At 51 per cent, females make up the majority of the population. In the first quarter of 2020, 54.5 per cent 57 of females participated in the labour force, compared to 66.3 per cent of men. 58 This is cause for concern, as it has been argued that gender inequality is present whenever male and female distribution in terms of labourforce participation deviates from their population ratio. 59 The problem does not appear to be unique to South Africa, though. The ILO has noted that females generally show a reduced participation rate in wage employment, primarily due to motherhood, which could negatively affect their overall labour-force participation rate. 60 In 2018, the global labour force comprised 3.5 billion participants, 61 of whom three out of five were male. 62 Of the potential labour force of 140 million people, a staggering 85 million were female, who, although seeking to take up employment, could not do so. 63 The ILO placed patriarchy and unpaid work among the top reasons for this state of affairs. 64 The logical conclusion is that improved labour participation is required for females to be appointed to more positions of power and decision-making, to which education is critical. However, despite a national commitment to providing all people with accessible education in both the South African Schools Act 65 and the Bill of Rights, 66 the South African workplace remains gender unequal, and female gains remain low. 67 This leads to the question: Are laws sufficient to ensure females' advancement in the workplace?

THE LEGAL FRAMEWORK GOVERNING FEMALE EQUALITY IN THE WORKPLACE
The late president Nelson Mandela once said: [F]reedom cannot be achieved unless women have been emancipated from all forms of oppression. All of us must take this on board, that the objectives of the Reconstruction and Development Programme (RDP) will not have been realised unless we see in visible and practical terms that the condition of the women in our country has radically changed for the better and that they have been empowered to intervene in all spheres of life as equals with any other member of society. 68 Since the dawn of the South African democracy in 1994, the country's jurisprudence attests to a sustained effort to repeal laws that discriminate not only on the grounds of race or ethnicity, but mainly also based on one's gender. Laws that were to the detriment of women in the workplace have long been replaced with more female-friendly statutes. Indeed, great strides have been made in empowering females, as the discussion below shows.

International and regional instruments
Coming from a history of discrimination, South Africa prioritised equality for females across all spheres upon its post-apartheid return to the international domain. This has seen the country ratify a range of international and regional instruments urging greater equality for women, including in the workplace.
These ratified instruments include the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 69 which obligates the country to abolish gender discrimination; 70 several ILO conventions aimed at gender equality in the workplace; 71 the Protocol on the African Charter on Human and People's Rights on the Rights of Females in Africa, 72 and the Covenant on Economic, Social and Cultural Rights (ICESCR). 73 The importance of the country's ratification of CEDAW lies in the Convention's helpful definition of discrimination and both formal and substantive equality, and its applicability to all forms of discrimination in all spheres of life, specifically also in employment. 74 One of the ILO instruments ratified is Convention 100, 75 which pertains to the implementation of equal remuneration for men and women who perform work of equal value. To this end, member states should ensure that equal pay is achieved through national legislation, collective bargaining, machinery for pay determination, or a combination of these. 76 Another notable instrument is Convention 111, 77 which notes that steps should be taken to eliminate discrimination in the workplace. Ratified by South Africa in 1997, this Convention calls on member states to "promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, to eliminate any discrimination in respect thereof". 78 As mentioned, South Africa has also ratified the Protocol on the African Charter on Human and People's Rights on the Rights of Females in Africa, 79 which aims to eliminate discriminatory practices against females, by explicitly requiring signatories to take the necessary steps to correct ongoing discrimination against females, 80 and unequivocally declares that males and females are equal before and under the law. 81 The ICESCR 82 requires member states to ensure that men and women enjoy equal rights pertaining to "all economic, social and cultural rights". 83 To this end, the Committee on Economic, Social and Cultural Rights (CESCR) made recommendations to assist member states in their bid to achieve these rights. Amidst others, the CESCR recommends that states launch educational campaigns to address society's perception of stereotypical gender roles, 84 as well as design and adopt policies and laws to ensure equal pay for work of equal value between men and women. 85 There are, however, several instruments, which South Africa has not yet signed nor ratified. Notably, these instruments may well assist South Africa in its bid to achieve true gender equality in the workplace. Applicable instruments in this regard include the Beijing Platform for Action; 86 several ILO Conventions 87 and Recommendations, 88 and the SADC Development and Revised Gender Protocol. 89 In terms of the Beijing Declaration and Platform of Action Strategic Objective (BPFA), 90 member states must adopt practices that will allow women to remain in the labour market, despite any responsibility related to 79  gender equality". 105 The Protocol also calls on members to put in place "special measures" that will allow for the removal of different barriers that hinder women from participating "meaningfully in all spheres of life". 106 More specifically, the Protocol calls on state members to ensure that women are, by means of "special measures", provided equal representation in decisionmaking positions. Finally, the Protocol recognises unpaid work and calls on member states to adopt measures that will allow shared responsibilities by the men and women of a household. 107

The Constitution of the Republic of South Africa, 1996
The Constitution of the Republic of South Africa 1996 (hereafter, the Constitution) serves as the compass to true gender equality in the workplace and as an instrument to address the imbalances of the past. This is confirmed by both sec. 1(b), which states that South Africa is founded on, among others, the value of non-sexism and sec. 9, which calls for equality, including gender equality. Chictkay 108 aptly states that, despite the Constitution being based on the founding values of dignity, equality and freedom, the vast majority of women remain victims in the workplace. It is accepted that sexual harassment, a form of unfair discrimination, lies on the continuum of violence or abusive behaviour, 109 a barrier to female equality. 110 The Constitution distinguishes between direct and indirect discrimination and prescribes when such discrimination would be deemed unfair. 111 Secs. 9(3) and (4) prohibit the unequal treatment of males and females on the socalled "listed grounds". Notably, the grounds listed in sec. 9(3) do not represent a closed list and provide for "unspecified grounds" of discrimination. 112 This was recently confirmed by Naidoo V Parliament of RSA. 113 105 SADC Revised Gender Protocol:art. 4(2). 106 SADC Revised Gender Protocol:art. 5. 107 SADC Revised Gender Protocol:arts. 16 (1) and (2) The matter of Harksen v Lane NO. 114 has established the test for unfair discrimination. The Constitutional Court held that, where differentiation is based on a specified ground, discrimination is established. However, in the event of differentiation on a ground other than a specified ground, the test would be whether or not, objectively speaking, such differentiation was based on "attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings, or to affect them adversely in a comparable manner". 115 Other critical notions in the Constitution are affirmative action and substantive equality. Sec. 9(2) establishes a link between the two, providing that "equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken." 116 However, the current challenge experienced in terms of affirmative action is not only a lack of guidance as to the legal standards that apply to such action 117 but, in the context of female representation, also the "suitably qualified person" test. 118 In terms of case law, the court in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 119 ruled that the Constitution is phrased in a manner that emphasises South Africa's support for substantive equality. In President of the Republic of South Africa v Hugo, the court called for an approach that allowed differential treatment in applying substantive equality to redress the unfair discriminatory practices of the past. 120 Yet, while substantive equality could bring about transformation for female employees, the conceptual consistency of its application is cause for concern. 121 The Constitutional Court appears to continue to accommodate females (and others) within the confines of the status quo, with no allowance for differentiation nor regard for the disadvantages they may face. 122 For instance, the court's acknowledgement in Hugo that females were the primary caretakers ironically had a substantively equalising and transformative effect, on the one hand, but reinforced females' stereotypical role in society, 123 on the other, relegating them to caretakers and, in effect, failing to adequately apply substantive equality. In S v Jordan, 124 the court further perpetuated female stereotypes, failing in its application of substantive equality in terms of a woman's choice to perform sex work.
Finally, sec. 23 of the Constitution also provides for fair labour practices. According to Rossouw, 125 the right to fair labour practices, as provided for in the Constitution, may well be interpreted as one of the constitutional rights that affords protection to "family life … as such, [within] the context of the workplace".

The common law 126
Under the common law, the following brief remarks need to be made. First, although the common law seldom concerns itself with a right that is adequately catered for under statute, it has been helpful in the fight against harassment as a barrier to gender equality. Both direct and vicarious liability based in common law aid gender equality, although the remedies are after the fact and are not preventative in nature. 127 Secondly, an employee who is a victim of sexual harassment can, in terms of the common law, claim damages "on the ground that her employer is vicariously or directly liable for such damages". 128 Thirdly, such a claim under the common law aims to address the harm caused to such employee, as opposed to a legislative claim under the Employment Equity Act (hereafter, "the EEA"), 129 which aims to address unfair discrimination.
It must be kept in mind that the common law merely entrenches equality but can be developed in light of the Constitution, where the matter is not regulated by legislation specifically.  The EEA 131 aims to remove unfair discrimination and promote affirmative action in employment. To this end, the EEA states explicitly that it intends to provide for "employment equity" and any "matters incidental thereto" 132 by, among others, giving effect, as a member state, to the obligations imposed by the ILO. 133 In this case, the most relevant Convention is Convention 111.
Apart from international obligations, the EEA also relies on enactments made by the labour minister to aid gender equality in the workplace. In terms of secs. 54(1) and 55, the labour minister may, on the advice of the Commission for Employment Equity and by way of a published notice in the Government Gazette, publish regulations and codes of good practice to give effect to the prescripts and requirements of the Act and regulate any administrative or procedural matter necessary to administer the Act. 134 Although such codes of good practice are not legally binding, they still need to be considered in the application of a statute. 135 As far as gender equality in the workplace is concerned, the minister has published the Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans. 136 Secs. 5, 6, 13 and 15 of the Act are of particular importance in pursuit of the goals of the EEA and the potential effect of the Act on female representation in the South African workplace. Secs. 5 and 6 137 of the EEA 138 deal with the prohibition of unfair discrimination within the workplace. Sec. 5 imposes a duty on every employer to take steps to promote equal employment opportunities by eliminating unfair practices and policies. 139 Sec. 6 stipulates that: the extent that legislation does not give effect to that right and may develop rules of the common law to limit the right, provided that the limitation is in accordance with sec. 36 (1)  137 As alluded to earlier, albeit in a constitutional sense, where grounds of discrimination are not explicitly listed, they are known simply as "unspecified" grounds. Despite the wording of sec. 6(1) of the EEA, which refers to "any arbitrary ground", it should not be understood that such wording implies that a third, additional category exists for other grounds of discrimination. There are, in fact, only two categories, namely listed and unlisted ("unspecified") grounds. This approach has most recently been adopted in the Labour Appeal Court in the case of Naidoo and Others v Parliament of the Republic of South Africa [2020] 10 BLLR 1009 (LAC):par. 27. 6(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, [or] family responsibility … or on any other arbitrary ground listed in subsection (1).
(2) It is not unfair discrimination totake affirmative action measures consistent with the purpose of this Act; or distinguish, exclude or prefer any person on the basis of an inherent job requirement for a job.
(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed.
As shown in Solidarity v Department of Correctional Services, 140 the affirmative action measures provided for in sec. 6(2)(a) of the EEA refer to those introduced to promote employment equity for people from designated groups. Case law confirms that the courts do encourage the application of affirmative action. In Solidarity v Department of Correctional Services, 141 the court emphasised that sec. 2 of the EEA, describing the purpose of the Act, specifically includes the implementation of affirmative action measures. In

Minister of Mineral Resources v Mining Corporation Pty (Ltd), 142 in turn, Majiedt
JA ruled that affirmative action should be used to redress past discriminatory practices and ensure equal opportunities in employment. In this regard, it is important to note that the EEA is not instructing the courts to implement the concept of affirmative action merely to remove discrimination but to implement it in a way that may result in substantive equality.
Affirmative action is regulated explicitly by secs. 13 and 15 of the EEA. Sec. 13 imposes a duty on the employer to "implement affirmative action measures for people from designated groups [to] achieve equality". 143 Sec. 15 then defines affirmative action measures as those intended to ensure that "suitably qualified" people from designated groups have equal employment opportunities and are equitably represented in the workplace. Designated groups comprise Black people, women, and persons with disabilities. 144 Candidates who are considered "suitably qualified" for a job are those with a combination of prior learning, formal qualifications, relevant experience, and the capacity to acquire the ability to do the job. 145  the criteria of the test for suitably qualified candidates, the odds appear to be stacked against females. Keep in mind that, as shown earlier, 146 females face unique challenges in entering and persevering in school and tertiary education and entering the labour force. Moreover, once in employment, a temporary or permanent interruption is highly probable due to child-rearing, family responsibilities, as well as social norms and traditions. This means acquiring the "formal qualifications" and "relevant experience" to be deemed suitably qualified is more difficult for females than for their male counterparts.
As shown earlier and also established in Ntai v SA Breweries, 147 affirmative action ought to be implemented, in order to achieve not only formal, but also substantive equality. 148 In this regard, Currie and De Waal 149 state that substantive equality "requires an examination of the actual social and economic conditions of groups and individuals to determine whether the Constitution's commitment to equality is being upheld". The test for a suitably qualified person does not seem to consider the "actual social and economic disparities" of females. In this regard, therefore, affirmative action fails as a vehicle to achieve the constitutional mandate of substantive equality.
Apart from the definition of 'suitably qualified', there are other deficiencies in the regulation of affirmative action. In this regard, Rossouw 150 argues that the manner in which affirmative action is enforced remains inadequate, as the enforcement thereof is administrative in nature and is done by way of undertakings to comply and the issuing of compliance orders. She also notes that the application of affirmative action in South Africa is mainly focused on achieving racial as opposed to gender representation in the workplace, 151  "(a) an employer who employs 50 or more employees; (b) an employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 to the EEA; (c) a municipality, as referred to in Chapter 7 of the Constitution; (d) an organ of state as defined in section 239 of the Constitution, but excluding the National Defence Force, the National Intelligence Agency and the South African Secret Service; and (e) an employer bound by a collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement." See also Rossouw 2018:120. female employees. The EEA 153 defines reasonable accommodation as "any modification or adjustment to a job or to a working environment that will enable a person from a designated group to have access to or participate or advance in employment". 154 To this end, Cohen and Dancaster 155 propose that accommodations in this sense could, for instance, mean alternative leave arrangements or flexible working hours, specifically for (female) employees with family responsibilities. However, they point out that the Act itself is silent on precisely what is required of employers in terms of reasonable accommodation. 156 Despite this, Cohen and Dancaster argue that the mentioned requests could most probably pass as "reasonable accommodation" requests. 157 The "inherent job requirement" provision in sec. 6(2)(b), in turn, was put to the test in the pregnancy-based discrimination matter of Manyetsa v New Kleinfontein Gold Mine. 158 In this case, a pregnant female employed as an electrician had to be moved to a position that would be safe for her upon reaching a specific stage of her pregnancy, as stipulated by company policy. However, when the mine could not find any suitable position, the employee was put on extended leave. The court held that the employer's actions did not amount to unfair discrimination and that the employer had successfully justified the discrimination by relying on the inherent job requirements of the available vacancies, which the employee failed to meet. To this end, the employer's attempts to abuse the defence of inherent job requirements to conceal unfair discrimination based on gender were addressed even prior to the Manyetsa case. 159 It is noted that (sexual) harassment may well act as a barrier to gender equality. 160 To this end, the Labour Court stated that, when dealing with sexual harassment cases, "patriarchal predispositions" should be shed in a bid to continue the fight towards gender equality. 161 Sec. 6(3) of the EEA 162 states that "harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1)". This means that harassment of an employee on the ground of gender is a form of unfair discrimination. According to art. 1(b) of the Violence and Harassment Convention of the ILO 163 (which South Africa has not yet ratified), the term "gender-based harassment" entails harassment directed at someone because of their gender. This includes sexual harassment. 164 According to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 165 sexual harassment based on gender is a form of unfair discrimination. In this regard, the Court held in Campbell Scientific Africa v Simmers 166 that "[T]he treatment of harassment as a form of unfair discrimination in s 6(3) of the Employment Equity Act 55 of 1998 (EEA) recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace."

The Promotion of Equality and Prevention of Unfair Discrimi nation Act (PEPUDA) 4 of 2000
The Promotion of Equality and Prevention of Unfair Discrimination Act (hereafter, PEPUDA) aims to give effect to sec. 9 of the Constitution by prohibiting and eliminating unfair discrimination and promoting equality. Notably, the Act provides explicitly for systemic discrimination that is based on gender and was caused by apartheid and patriarchy. 167 Sec. 6 of the Act states that no person or the state may unfairly discriminate against any other person, thereby both generally and specifically prohibiting and aiming to prevent unfair discrimination. 168 PEPUDA does not apply where the EEA finds application. 169

The Basic Conditions of Employment Act (BCEA) 75 of 1997
The purpose of the Basic Conditions of Employment Act (hereafter, the BCEA) is to comply with sec. 23 of the Constitution, which regulates both fair labour practices and basic conditions of employment.
Yet, the court in Manyetsa v New Kleinfontein Gold Mine 170 found the BCEA lacking in properly protecting all employees against unfair discrimination. As discussed earlier, in Manyetsa, company policy dictated that a pregnant employee working as an electrician had to be moved to a safer position once she reached a specific stage of her pregnancy. The mine could not secure such an alternative position and placed the employee on extended maternity leave. Even though the court finally held that the employer's actions were not unfair, it did lament the fact that specific South African laws, enacted to govern basic conditions of employment, including the employment conditions for pregnant employees, seemed to fall short. The court argued that, ironically, any "unfair, unjust and unreasonable" circumstances suffered by a female employee, due to her pregnancy, could be directly attributed to shortfalls in 164  the very laws designed to protect her. 171 This serves as a reminder that South African labour laws, and specifically the BCEA, are far from perfect and are, in many instances, crippled by societal norms and attitudes. This said, South Africa recently made legislative attempts, through amended leave provisions, to arguably achieve a more equal distribution of unpaid work and ultimately greater equality for working women. In terms of the Basic Conditions of Employment Amendment Act, 172 fathers are now entitled to ten consecutive days' unpaid paternal leave. Previously, childcare and parental leave for fathers were primarily taken in terms of family responsibility leave, 173 which allowed fathers three days' paid family responsibility leave. 174 Although the implementation of parental leave is a commendable step in South African labour law, it still does not equally distribute parental responsibilities.
Under the discussion of the EEA earlier, mention was made of the possibility of flexible working hours and alternative leave arrangements for (female) employees with family responsibilities as a means of reasonable accommodation and a way of implementing affirmative action. Notably, the BCEA states that every employer ought to regulate an employee's working time with due regard to the employee's family responsibilities. 175 In this sense, the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices 176 encourages employers to grant flexible working hours to employees with family responsibilities and equal family responsibility leave to both parents. 177 Moreover, the Code of Good Practice on Arrangement of Working Time 178 encourages employers to accommodate "the special needs of workers such as pregnant and breastfeeding workers, and workers with family responsibilities". 179 As noted earlier, 180 these codes are, unfortunately, not legally binding. In this regard, Cohen and Dancaster argue that they "fail to provide any significant rights for employees who are caregivers". 181 To this end, it is suggested that, as in the United Kingdom, South Africa should adopt a right to flexible working hours, 182 especially for employees with caregiving responsibilities. In this instance, Rossouw suggests that employers should at least consider "a request for flexible working hours in a reasonable manner with a concomitant requirement that employers should provide (written) reasons to the employee if the request is denied". 183 However, it must be kept in mind that, despite an envisioned right to flexible working hours for (female) employees, which may well assist in keeping women in employment or succeed to top-level positions, this might only address one category of unpaid work, namely family responsibilities. 184

National Policy Framework for Women's Empowerment and Gender Equality
Though not prescriptive statute, South Africa has the National Policy Framework for Women's Empowerment and Gender Equality as a potential vehicle to achieve true gender equality. The Framework resulted in the establishment of, and has a symbiotic relationship with the National Gender Machinery (NGM), which was created to empower females and promote gender equality. More specifically, the NGM was established to ensure that subsequent gender equality institutions pay due regard to female empowerment.
The institutions subsequently established under the NGM include the Commission on Gender Equality (CGE). In addition to its primary purpose of achieving true gender equality, this Commission, which was established by Chapter 9 of the Constitution, is intended to advise the minister on specific codes of good practice that employers should follow, in order to ensure employment equity. 185 However, some argue that the CGE has lost track of these purposes and, instead, appears to be more concerned with public information than legislative performance in pursuit of true gender equality. 186

Women Empowerment and Gender Equality Bill (WEGE Bill) 187
In another effort to give effect to sec. 9 of the Constitution, the Women Empowerment and Gender Equality Bill (hereafter, the WEGE Bill) was tabled in Parliament in 2013 to allow for equal representation for females in the workplace by means of gender quota legislation. 188 As Hills explains, 189 this would mean that "all organisations, corporations, and government departments … [will] have 50 per cent females on their decision-making may reject a request for flexible working hours and that a route for dispute resolution must exist whereby an employee can pursue the unreasonable rejection of such request. See Rossouw 2018:260, 261. 184 See page 29, where housework and general house maintenance is also categorised as unpaid work. bodies". This has been shown to work in other jurisdictions. In Germany, for instance, gender quota legislation has spurred remarkable improvements in female representation in the workplace; 190 this might be a worthwhile option for South Africa to explore.
In addition to pushing for equal representation for females in senior positions in the workplace, the WEGE Bill would also improve women's access to education, which includes providing support for females at educational institutions upon childbearing, in order to retain them within the system. Nevertheless, eight years later, the Bill has not been enacted. Unfortunately, the Bill has lapsed, 191 creating the impression that female empowerment, specifically in top-level and decision-making positions, is not considered a priority. 192

Is it enough?
As shown earlier, South Africa has adopted a vast array of laws and other instruments with the specific aim of ensuring gender parity, affording females the same rights as their male counterparts in the workplace. However, despite all these legislative interventions, and six decades since women of all races marched to Parliament to fight for gender equality, gender inequality is still very much alive, particularly in high-ranking positions.
Clearly, therefore, the regulation of human conduct does not seem to have had the desired effect, as it has not led to a more even spread of males and females in positions of high power and seniority. Equality legislation, including the current regulation of affirmative action, is not enough to ensure transformative change for females in the workplace. Other factors appear to play a role in the underrepresentation of women in top-level decisionmaking positions. The proverbial glass ceiling remains an "invisible barrier for females, preventing them from moving up the corporate ladder" 193 and entering and advancing into senior positions. 194 In South Africa, the glass ceiling is said to be propped up by corporate practices, cultural causes 195 and gender discrimination. 196 As Adelekan and Bussin 197 have stated, where hardly any logical reason can be found for women's severe underrepresentation in the workplace and, 190 Hills 2015:154. 191 The Bill has lapsed in terms of NA Rule 298. 192 Hills 2015:158-158, 161. 193 April et al 2007:54. 194 Smit 2016 Corporate practices include the recruitment and promotion of employees, and cultural causes include the means whereby employers apply stereotyping in selecting leadership styles. See Oakley 2000:323-324. 196 Wiesenfeld & Robinson-Backmon (2007 refer to the glass ceiling as discrimination in the labour market, which "represents a job inequality that is not explained by job relevant characteristics such as education, experience, past qualifications or achievements". 197 Adelekan & Bussin 2018:8. 2021:46(1) Research Article by implication, in top positions, one can safely conclude that females are being discriminated against in the world of work.

Journal for Juridical Science
The following paragraphs explore patriarchy and unpaid work as two such potential discriminatory practices that keep women in lower-ranking employment compared to their male colleagues.

PATRIARCHY AND UNPAID WORK AS BARRIERS
PREVENTING FEMALE ADVANCEMENT TO TOP-LEVEL, DECISION-MAKING POSITIONS

Patriarchy
In a study on gender relations conducted by Wood, 198 participants poignantly expressed their understanding of the notion of patriarchy, drawing images of females on their knees in front of their husbands or male partners, apologising for not performing certain household tasks and, in a sense, begging for money.
Throughout history, the idea that men could have power over other men but should always have authority over women has been entrenched in hierarchies 199 and human relationships. Being so deeply rooted and universally accepted in society at large, patriarchy has, in effect, become an "invisible" platform of power. 200 As Kornegay explains: 201 The socio-cultural dictates of all groups defined females to be inferior to men and as such assigned to them the position of minors in both the public and private spheres of life. In the private sphere, females were less likely to lead in decision-making. In most interpersonal relationships, men had more power. This historical legacy of patriarchy influenced essential informal and formal human relationships with a marked impact at the workplace.
To understand the effect of patriarchal South Africa on females in the workplace, a clear definition of patriarchy and oppression is required. Patriarchy is regarded as "a system of social structures and practices in which men dominate, oppress and exploit females"; 202 a social system where men have power and authority over women. 203 Oppression, in turn, is understood as the "arbitrary and cruel use of power". 204 Patriarchal oppression, therefore, refers to men's arbitrary and cruel use of power over females.
In the workplace, patriarchy manifests itself in a culture that regards men as the "bosses" of (or superior to) female colleagues. 205 While this in itself might be difficult to address, as it is not deemed a legal problem, it does cause a legal issue, namely unfair discrimination.
In terms of legislative attempts to root out the existence and effects of patriarchy in the workplace, most (if not all) of the ratified and adopted instruments and laws discussed earlier as part of the framework governing gender equality in South Africa find application. These ratified instruments include ILO Convention 100, Convention 111 and CEDAW; 206 the Protocol on the African Charter on Human and People's Rights on the Rights of Females in Africa, 207 and the International Covenant on Economic, Social and Cultural Rights. 208 South Africa is also due to sign ILO Recommendation R206, which states that "[m]embers should address violence and harassment in the world of work in labour and employment, occupational safety and health, equality and nondiscrimination law, and in criminal law, where appropriate".
To give effect to these international instruments, national legislation has been passed that specifically prohibits unfair discrimination in the workplace. Such prohibitions are found in sec. 9 of the Constitution, in the EEA, 209 the Employment Equity Amendment Act, 210 and, where the latter does not find application, PEPUDA. 211 Importantly, PEPUDA specifically prohibits systemic discrimination based on gender and caused by patriarchy. 212 Nevertheless, both formal 213 and substantive 214 equality in the South African workplace seem to be crippled by social norms and cultural tradition. 215 Traditional gender roles have perpetuated patriarchy to the extent that females are regarded as inferior to their male counterparts and dependent on them for resources and status, 216 mostly being relegated to the realm of family rearing. 217  It is a sad fact that one of the few profoundly non-racial institutions in South Africa is patriarchy indeed, it is so firmly rooted that it is given a cultural halo and identified with customs and personalities of different communities ... [P]atriarchy brutalises men and neutralises females across the colour line.
Believed to be "a permanent force" in South Africa, patriarchy is "a cause of grave concern as in most cases it hinders the implementation of policies and acts … [and] … the carrying out of orders". 220 Therefore, despite an extensive framework of legislation, provision made in the supreme law of the land, the Constitution, as well as the adoption of several national, regional and international instruments to ensure women's advancement in the workplace, the underlying force of patriarchy means that true gender equality in employment remains a long way off.
This seems particularly true in positions with higher status and pay involved, as well as positions of leadership, where females appear to struggle to break through the glass ceiling. The same glass ceiling for female employees has also embedded the gender pay gap in the world of work.

Unpaid work
According to Ngomane, 221 unpaid work is "[w]ork that is necessary for the subsistence of life and health, … childbearing and rearing, socialisation of children, teaching, feeding, transporting and all essential emotional and psychological work which goes into developing people so that they become productive members of society". Indeed, females are often defined in terms of motherhood. This not only implies that females are more likely than men to be socially responsible for the work that is "necessary for the subsistence of life and health", 222 but also affects their participation in the labour market and, ultimately, their economic growth. 223 This appears to be the situation across the world, with females performing the majority 224 of unpaid work. 225 Judging by the ratio of employment by gender and household in the latest World Economic Forum (WEF) report, Suggestions as to the exact causes for this state of affairs vary. Some propose that patriarchal practices are partly to blame, as the oppression and exploitation of females, both at work and at home, have become normalised as accepted social practices. 230 Others argue that social norms themselves have played a part, considering that domestic chores and child-rearing are strongly linked to women's position in society. 231 In essence, as females struggle to compete on an equal footing with men in the labour market, unpaid work continues to manifest itself disproportionately among females, reinforcing patriarchal values. 232 South Africa has made certain attempts to address the issue of unpaid work, although none have had any tangible effect. In 1995, South Africa became signatory to the Beijing Platform for Action, 233 which calls on signatories to reduce unpaid work among females.
In 2013, the United Nations reiterated that the "unpaid work" phenomenon was directly linked to the inequality females continued to face. 234 Ironically, in that same year, South Africa's Women Empowerment and Gender Equality Bill was tabled in Parliament. 235 This offered the country an opportunity to demonstrate its willingness to rectify the gender inequalities associated with unpaid work. Sadly, the Bill has not been enacted, creating the impression of a lack of commitment to, and interest in protecting females in the workplace and correcting the wrongs of unpaid work.
A parliamentary question posed to the Minister of Women in 2014 revealed that unpaid work was indeed relevant and paramount to the overall empowerment and equality of females. 236 In 2015, the South African Department of Women, Youth and Persons with Disabilities, in its report The Status of Women in the South African Economy, confirmed that females were primarily responsible for, and were spending more time than their male counterparts on unpaid work. 237 This was echoed by the South African Human Rights Commission two years later, 238 who called for a more equitable distribution of unpaid work and a change in social norms. 239 In its attempt to address the issue of unpaid work, Gender Links, 240 a Southern African women's rights organisation, called the phenomenon a persistent direct barrier to the economic empowerment of females, restricting them from employment opportunities.
In the country's latest attempt to achieve greater equality for females and a more equal distribution of unpaid work, South Africa passed the Basic Conditions of Employment Amendment Act 241 in 2018. Specifically with regard to the provisions of parental leave, the predecessor to the Amendment Act governed childcare and parental leave primarily in terms of maternity and family responsibility leave. 242 Fathers were allowed three days' paid family responsibility leave. 243 Yet under sec. 25A of the Amendment Act, fathers are now entitled to ten consecutive days' unpaid paternal leave. This was a noteworthy and commendable step in South African labour law. Nevertheless, an equal distribution of parental responsibilities is not yet a reality, with mothers continuing to perform the majority of unpaid work.

CONCLUSION AND RECOMMENDATIONS
As shown in this contribution, there is no denying that females in South Africa continue to face barriers to entry and advancement in employment, particularly also in top-level, decision-making positions. Specific barriers to equal employment for women discussed in this article include patriarchy and unpaid work, which are closely intertwined. As females continue to be subjected to male domination in the form of patriarchy, they are automatically relegated to the realm of unpaid work, carrying a disproportionately heavy burden of child-rearing and other domestic responsibilities. Factors perpetuating these barriers include unfair discrimination, pregnancy, educational attainment, social norms, and cultural traditions.
Despite some meaningful suggestions made on the reasonable accommodation of women, they may not be enough. The root of the problem does not appear to be a lack of legislative provision. As demonstrated in the outline of the country's legal framework governing equal employment, South Africa has, save for a specific right towards flexible working hours, sufficient laws and instruments in place to allow women to thrive in the workplace and to claim for instances of unfair treatment. Since promulgated laws and other legal instruments already sufficiently cater for female employees in South Africa, even the revival of the now lapsed Women Empowerment and Gender Equality Bill would probably not change much. Aside from serving as an acknowledgement by government that gender equality in the workplace is a cause worth pursuing, enacting the Bill would merely add to an already extensive legal framework.
Instead, the focus should urgently shift to enforcement and application by the country's courts, which remain dismally inadequate, as much of the case law cited in this article has shown. By attempting to accommodate female employees within the confines of the status quo, the courts ironically further entrench the notion of women being subordinate in society, including at work. The inconsistent application of substantive equality continues to hinder true gender equality. Even implemented vehicles of substantive equality, such as affirmative action, which has been specifically designed to ensure female representation in top positions, seem to be ineffectual if not applied correctly. Going forward, therefore, the South African courts would be well advised to adopt a more holistic approach to the implementation of substantive equality, regarding females not only as members of a designated group, but also considering the full extent of the disadvantages they face in everyday life.
Moreover, government appears to be overlooking the possibilities offered by the National Policy Framework for Women's Empowerment and Gender Equality. The Framework could be much better utilised as a vehicle to achieve what its name proclaims to do. Efforts under the banner of the Framework could include earmarking funds not only to allow more females to stay in school, but also to educate society on the value of female employment and advancement at work, and the need to break away from entrenched social norms.
Such an educational campaign should include employers, urging them to recognise the existing barriers to women's entry and advancement in the workplace, and to fully commit to bringing about substantive gender equality.
Ultimately, legislation is not enough to root out patriarchy and the "unpaid work" burden suffered by women, as both are fuelled by deep-rooted social norms and cultural traditions. Wood 244 argues that positive shifts in social norms occur when individuals' own beliefs change for the better. If that is so, the current lack of female representation in high-powered positions, and the persistent social norms underlying it, paint a sad picture of the general attitude towards female empowerment in the country.