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Workplace Discrimination: Definition & What You Can Do

Legal aid in South Africa is an absolute must, since you never know when you may need that representation against a disgruntled ex-employee or an unscrupulous supplier. There are several reliable firms and insurers that can put the affordable legal assistance in your corner when civil suits are brought against you or your company. Among the most pressing legal issues in the South African workplace is that of unfair dismissal and overall workplace discrimination. Find out what constitutes unfair dismissal and discrimination, and how victims of workplace discrimination can fight back.

What Is Workplace Discrimination?

Workplace discrimination is defined in the Employment Equity Act (EEA) Section 6(1) 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, birth or on any other arbitrary ground.”

However, in a recent Labour Court judgement (Naidoo v Parliament of the Republic of South Africa), argued for a clearer interpretation of “any other arbitrary ground” – an interpretation that must be informed more by the Constitutional definition of discrimination.

Different Types Of Workplace Discrimination

Fair discrimination

  • Compulsory discrimination: It is illegal for a company to employ children under the age of 15 years or pregnant women four weeks before confinement and six weeks after giving birth.
  • Discrimination based on inherent requirements for a job: Employers reserve the right to discriminate based on whether the candidate or employee has the necessary skills or capabilities to do the work required. For example, you wouldn’t expect an airline to employ someone with poor eyesight as a pilot.
  • Discrimination based on productivity: It’s fair for employers to discriminate on the basis of an employee’s productivity when considering their candidacy for a pay increase. However, this is dependent on the fairness of the criteria, with which the employer assesses performance and productivity.
  • Discrimination based on affirmative action: Any company should be mindful of affirmative action measures that promote fairness in favour of previously disadvantages groups. The goal of affirmative action is to achiever employment equity in the workplace without lowering standards or unduly limiting the prospects of existing employees.

Unfair discrimination

  • Direct discrimination: The more obvious form of unfair discrimination, involving discrimination based on one’s sex, race, religion, sexual orientation, marital status, etc.
  • Indirect discrimination: This form of discrimination could arguably fall under the “any other arbitrary ground” label. It is defined as structural practices and policies in a workplace that affect certain groups negatively. The interpretation of this concept is usually left up to the Equal Employment Opportunity Commission and the courts.

How To Report Unfair Discrimination

  1. Keep a record of instances of discrimination. Emails or some kind of paper trail is best, but otherwise a journal is a good place to record persistent workplace harassment or discrimination. Even better is if there are colleagues, who also feel affected by instances of unfair discrimination.
  2. First speak to your supervisor. However, if your supervisor is the perpetrator of said discrimination, go straight to the next link in the chain of command.
  3. If the discrimination persists and nothing is done to address it, approach the CCMA or any workers union, with which you may be affiliated.

Section 11 of the Employment Equity Act 55 of 1998 gives criteria for how to approach discrimination allegations.

Firstly, if a company is taken to task about an instance of discrimination, it’s up to said company to bear the burden of proof. The accused organisation must be able to prove, on a balance of probabilities:

  1. the discrimination did not take place as alleged, or
  2. the discrimination is rational and not unfair, or is otherwise justifiable.

However, if unfair discrimination is alleged on an arbitrary ground, it’s up to the complainant that must prove, on a balance of probabilities, that:

  1. the conduct complained of is not rational,
  2. the conduct complained of amounts to discrimination, and
  3. the discrimination is unfair.

Next Steps

If you’re going to bring this matter into a court of law, you’re going to want a good legal aid on hand. With legal insurance, you can afford a lawyer for cases of unfair discrimination and unfair dismissal (among other civil law disputes). Don’t wait until you need it; get a legal cover quote today!