The Prohibition of Unfair Discrimination in the Workplace

The purpose of the Employment Equity Act (EEA) is to achieve equity in the workplace

The Prohibition of Unfair Discrimination in the Workplace

The Employment Equity Act

The purpose of the Employment Equity Act (EEA) is to achieve equity in the workplace by –

  • promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
  • implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.

Section 6(1) of the EEA reads as follows:

“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, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”.

Locked up in this section is the basic protection of all employees against unfair discrimination. The issues raised by section 6 of the Act can be listed as follows:

Who is protected by this prohibition and against whom is the prohibition aimed?

Section 6 of the Act protects an “employee” against unfair discrimination. The definition of employee for purposes of the Act is, for all intents and purposes, the same as that used in the Labour Relations Act. In addition, section 9 of the EEA expressly includes an applicant for employment under the protection against unfair discrimination. One interesting issue in this regard relates to the difference between and “employee” and an “applicant for employment”. Employees are protected against a whole range of possibly discriminatory policies and practices of an employer. In contrast, an applicant for employment is, by definition, only protected against unfair discrimination in the employer’s decision about whom to appoint.

More difficult is the question as to whom the prohibition on unfair discrimination is aimed at. As a point of departure, it is important to note that section 6(1) of the EEA does not speak of an “employer” but of “no person”. Although this will include the “employer” it is clear that the concept is wider than that. The definition of “employment policy and practice” also includes the provision of employment benefits, while not limiting such to provision by an employer. This would mean that discrimination by a pension fund, even if independent from the employer may well be actionable under the EEA.

What about a situation where a co-employee or a customer discriminates against an employee? The answer to whether an employer may be held liable in these instances is of particular significance, especially in cases of harassment. In this regard, section 60 of the EEA creates a form of vicarious liability of employers for the discriminatory acts of its employees. Where an employee discriminates against a co-employee at work, this must be brought to the attention of the employer who immediately has to take steps to eliminate the conduct in question. If the employer takes steps or can show that it did all that was reasonably practicable to ensure compliance with the Act, the employer will escape liability. This rule, however, has two exceptions. Firstly, employees at certain senior levels arguably “are” the employer, which means that knowledge of the contravention will be imputed to the employer and will simultaneously defeat use of this defence. Secondly, it may not be enough for an employer to escape liability by claiming that it was not informed as a precondition to liability in terms of section 60 of the EEA.

Section 5 of the EEA stipulates that:

“…every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”

This section then requires employers to take steps in advance, to be pro-active in the elimination of unfair discrimination and not simply to sit back and wait to be informed before doing something. The absence of effort in anticipation of discrimination may well found liability.

Understanding unfair discrimination: The structure of a discrimination claim in South Africa

The Constitution, the Labour Relations Act and the Employment Equity Act prohibit direct or indirect discrimination. It has been pointed out that the notion of unfair discrimination is unusual, because most constitutional and legislative instruments which outlaw discrimination have left the pejorative connotation of the “discrimination” to speak unaided to those who interpret them. The term has been interpreted by the Constitutional Court on several occasions, and the conclusion drawn by the Court is the word “discrimination” itself is used in a pejorative and not a neutral sense:

“The proscribed activity is not stated to be “unfair discrimination” but is stated to be “unfair differentiation” Given the history of this country we are of the view that “discrimination” has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them.1

This means that the word “unfairly” does more than distinguish between different kinds of differentiation. It distinguishes between permissible and impermissible discrimination, where discrimination itself has a pejorative meaning. The Labour Courthas explained it as follows:

“The provision sorts permissible from impermissible discrimination. By this mechanism the legislation recognises that discriminatory measures are not always fair….the notion of permissible discrimination is in keeping with a substantive, rather than formal, approach to equality that permeates the Constitution and from which the Labour Relations Act draws its inspiration.2

The distinction between direct and indirect discrimination

Direct discrimination refers to situations in which some people are treated differently from others on the basis of their race, sex, religion, sexual orientation or other protected trait. Indirect discrimination or disparate impact, on the other hand, occurs when an employer utilises an employment practice that is facially neutral but disproportionately affects members of disadvantaged groups in circumstances where it is not justifiable. The notion of equal treatment underpins direct discrimination provisions, and is based on the familiar principle that like should be treated alike. Indirect discrimination, on the other hand, recognises that equal treatment might produce unequal results if the relevant subjects are socially unequal to begin with. The concept of indirect discrimination originated primarily in response to labour market in the United States that suggested that the prohibition of direct discrimination had failed to significantly improve the socio-economic position of black people.

As a rule, direct discrimination is easily recognisable. It occurs where a differentiation or distinction between employees is overtly based on one or more of the criteria listed in section 6 of the EEA, or on a ground not specifically mentioned in the section which passes the Harksen v Lane test. Direct discrimination would, for example be established where an employer treats a female employee less favourably than a male employee simply on the basis of sex.

If an allegation of indirect discrimination is made, applicants at a minimum will need to identify the basis for the claim, and because indirect discrimination is in essence a statistical concept, provide the court with some figures to bolster it.

The meaning of employment policy or practice

Employment policy or practice is specifically defined in the EEA. Section 1 defines the phrase as including, but not limited to, the following:

  • Recruitment procedures;
  • Advertising and selection criteria;
  • Appointments and the appointment process;
  • Job classification and grading;
  • Remuneration;
  • Employment benefits and terms and conditions of employment;
  • Job assignments;
  • The working environment and facilities;
  • Training;
  • Training and development;
  • Performance evaluation systems;
  • Promotion;
  • Transfer;
  • Demotion;
  • Disciplinary measures other than dismissal.

While it would, in a majority of cases, be fairly straightforward for an applicant to identify the employment policy or practice that had caused the disproportionate impact, the definition contained in section 1 also groups notoriously difficult-to-separate criteria under one heading, thus easing the burden on applicants. For instance, applicants will be able to argue that the employer’s entire “recruitment procedure”, “appointment process”, “job classification system” or “performance evaluation system” has a disparate impact on a protected group without having to separate the various elements of such a system. This will be particularly relevant in those situations in which the employer has a number of objective requirements and subjective requirements for promotion, none of which is an absolute requirement. Even though the individual factors are capable of separation, the employee will be able to argue that the entire system has a disparate impact on a group, such as women, black people or the disabled.

Footnotes

  1. Prinsloo v Van Der Linde & Another 1997 (3) SA 1012 (CC)
  2. Leonard Dingler Employee Representative Council & Others v Leonard Dingler (Pty) Ltd and Others 1998 (19) ILJ 285 (LC)

Author: Wendy Isaack B.Proc, Legal Advisor.
Originally published: 19 November 2003

http://www.equality.org.za

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