Discrimination in the workplace

What constitutes discrimination?

One of the principal tenets of our Constitution is equality under the law. The Bill of Rights is the cornerstone of the Constitution, and Section 9 deals with equality. Discrimination is covered in subsections 3-5, which state: 

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

What does this mean in an employment context? South Africa’s Labour Relations Act (LRA) aims to protect the rights of all parties, ensuring no discrimination or bias. Workers’ dignity and rights are safeguarded. However, just because a right is enshrined in legislation does not mean it is always upheld. We’ll look at a few examples of unfair discrimination and explain what to do if you have been discriminated against in the workplace.

Direct and indirect discrimination

Employees are frequently treated differently and this is acceptable if it is on valid grounds and serving a legitimate purpose. For example, pay levels vary based on expertise, skills, experience, and sometimes length of service. While employees may grumble when a co-worker gets a pay rise, a difference in pay does not in itself constitute discrimination.  

However, when differentiation is based on an unlawful ground, it is discrimination even if there is no specific intention to discriminate. Discrimination can be direct or indirect.

Direct discrimination is generally easily detected and identified. Differential treatment because of a certain characteristic such as race or gender is usually obvious. Indirect discrimination, by contrast, is often disguised and hard to detect. It occurs when criteria which should be neutral negatively and disproportionately affect a certain group, such as those of a particular religious persuasion or sexual orientation. 

Age and sexual preference

A candidate for a nursery teacher position in a day care centre revealed at interview stage that she was in a same-sex relationship. She was also in her 50s. Although she had been invited for interview, which suggests she was initially considered a suitable candidate, she was then informed by the employer that the position must be filled by a heterosexual under the age of 30. It could be argued that the employer objected to the candidate’s sexual preference and used age as an excuse. We can’t know why the candidate chose to disclose her sexual orientation, which she was not obliged to do, or what the employer’s real objection was. But both grounds are protected by section 3 of the Bill of Rights.

Furthermore, the Employment Equity Act 55 of 1998 (EEA) gives effect to the equality referred to in the Constitution. It aims to:

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

The EEA further declares that: “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, birth or on any other arbitrary ground.”

The EEA does allow for certain positions to be held by prescribed groups, if the practice constitutes a lawful affirmative action measure or can be shown to be an inherent requirement of the job. For example, a shelter for abused women can legitimately hire only female case workers.

It would be difficult to argue that a nursery teacher must be female, and impossible to make a case for youth and heterosexuality, neither of which has any bearing on the skills and capabilities needed to work with young children. Arguably, a more mature individual has more experience and patience. However, in the case of the job interview, the individual being discriminated against was not an employee, but simply a job applicant. While the grounds for discrimination are clear, she does not have recourse under the EEA. She could approach the Commission for Conciliation, Mediation and Arbitration (CCMA) if she is unable to resolve the matter directly with the employer, but the CCMA is unlikely to arbitrate because she is not an employee.

In this case the candidate could refer the matter to the Equality Court on the grounds of section 5(1) of the Promotion of Equality and Prevention of Unlawful Discrimination Act 4 of 2000, which deals with unlawful discrimination in all spheres of society and does not apply to employees as defined in the EEA. She could flag the discriminatory practice, which would hopefully cause the employer to revise its recruitment tactics, and seek damages or compensation.

Disability

While disability is one of the grounds on which employers may not discriminate, some conditions and their consequences are not straightforward and can cause dispute. In another case, a senior and valued employee attempted suicide and was left with facial disfigurement and speech difficulties. Despite his readiness to return to work, confirmed by medical reports, the company rejected his return on the basis that he was “not facially acceptable.” The employer suggested he pursue a disability claim, but the employee felt this would be fraudulent as he was not disabled. He reiterated his readiness and willingness to work, but the employer maintained he was “cosmetically unacceptable.”

The refusal to reinstate the employee based purely on his appearance can be seen as an affront to his dignity and could constitute discrimination under the EEA on the grounds of disability. While the facial disfigurement may not clearly fit the definition of a disability, the employer’s conduct appears discriminatory and attacks the employee’s dignity.

The employee could pursue an unfair dismissal claim on the grounds of discrimination. The employer may argue that facial disfigurement does not meet the EEA’s definition of a disability and its actions were rational and justifiable. However, the courts have ruled against employers who fail to reasonably accommodate employees returning from health-related absences. The employee could be entitled to damages for the discrimination he faced and compensation for his lost income.

Direct or indirect discrimination based on race, gender, age, disability, etc. is considered grounds for unfair dismissal. To learn more about unfair dismissal and the process for challenging it and registering a dispute, see our article Unfairly dismissed?

Legal advice

If you have been unfairly dismissed on the grounds of discrimination, you do not need a lawyer to register a dispute with the CCMA. However, if your matter is more complex, or you think have been discriminated against but are not sure how to prove it, and you would like to discuss your situation with a legal professional, one of our labour lawyers will be pleased to assist. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

• Unfairly dismissed?
• Sexual harassment in the workplace
• Labour Dispute Resolution

SD Law

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