Equality in the workplace: South African legislation and discrimination

Equality in the Workplace Introduction

NELSON MANDELA UNIVERSITY Chapter 5 Equality in the workplaceINTRODUCTION

• Employment Equity Act (EEA) - primary statute regulating equality and discrimination in employment.
• EEA is supplemented by LRA and PEPUDA which provide protection for those not covered by EEA, e.g. SANDF soldiers, NIA and South African Secret Service. . Together they cover wide range of employment-related forms of discrimination.
• EEA, LRA and PEPUDA - all enacted to give effect to provisions of Constitution. . Constitution prohibits "unfair discrimination" and provides that legislative measures may be taken to promote the achievement of equality for people who have been disadvantaged by unfair discrimination.
• Achievement of equality therefore requires certain groups or persons to be treated differently in order to ensure that they attain full equality with others who have not been disadvantaged. NELSON MANDELA UNIVERSITY Change the World

Purpose of the EEA

PURPOSE OF THE EEA . The purpose of the EEA reflects this apparent contradiction: to eliminate discrimination in the workplace

EEA Affirmative Action

Purpose of the EEA to make provision for affirmative action to redress disadvantages in employment experienced by designated groups

• Affirmative action = measures which aim to ensure equitable representation in the workplace of members of designated groups - i.e. black people, women and people with disabilities. NELSON MANDELA UNIVERSITY Change the World

EEA Structure and Application

• The EEA is divided into two parts: one which deals with the prohibition of unfair discrimination; and the other which deals with the implementation of affirmative action measures.

Employment Equity Act Components

Unfair Discrimination Employment Equity Act Affirmative Action NELSON MANDELA UNIVERSITY Change the World

Application of the EEA Provisions

APPLICATION OF THE EEA . The unfair discrimination provisions of the EEA apply to all employees and employers.

• For purposes of ss 6, 7 and 8 - "employee" includes an applicant for employment. . The employment equity (affirmative action) obligations of the EEA apply in the main to designated employers who are primarily employers who employ 50 or more employees. . A non-designated employer may notify the DG of the DOL that it intends voluntarily to comply with the EEA. . Once the employer has notified the DG of this intention, all provisions of the Act become applicable. NELSON MANDELA UNIVERSITY Change the World

Unfair Discrimination in the Workplace

UNFAIR DISCRIMINATION . The basis of the cornerstone of the prohibition of unfair discrimination in workplaces is section 6(1) of the EEA: "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, 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 or an any other arbitrary ground."

• Discrimination as such is not prohibited - only unfair discrimination is prohibited. . Both direct and indirect discrimination are prohibited.
• Provision contains a list of 20 grounds on the basis of which discrimination is prohibited - s 6(1) encapsulates the word "including" and the phrase "any other arbitrary ground" - implies a ground not listed can also be basis of discrimination. NELSON MANDELA UNIVERSITY O Change the World

Differentiation in Employment

Differentiation

• Differentiation = employer treats employees or applicants for employment differently or employer uses policies or practices that exclude certain groups of employees.
• Examples of differential treatment: v One applicant for a job is appointed and another is not. V One employee is promoted and another is not. . However, many requirements, conditions, policies or practices could by their very existence exclude applicants and existing employees from employment, promotion or benefits. . For example, an employer may require certain educational requirements for a employment in a particular post. NELSON MANDELA UNIVERSITY Change the World

Discrimination vs. Differentiation

Discrimination

• Differentiation is a precondition for discrimination, but differentiation cannot be equated with discrimination. . The mere fact of differentiation does not mean that differentiation took place for an unacceptable reason. . Differentiation only becomes discrimination when the differentiation is made for an unacceptable reason.
• Unacceptable reasons = listed grounds in section 6(1) of the EEA. . It is also possible that a reason not listed in section 6(1) may be regarded as analogous to the listed grounds - may provide basis for a claim of discrimination. . E.g. employer does not appoint an applicant because she is pregnant or because he is black - employer not only differentiating but is also discriminating - because the differentiation can be linked to a ground of discrimination. NELSON MANDELA UNIVERSITY Change the World

Unfair Discrimination Justification

Discrimination that is unfair . Despite the negative connotation associated with the word "discrimination" - not all discrimination is necessarily unfair discrimination. . Employers will inevitably discriminate against employees. . For example, an airline may prohibit the employment of pilots over the age of 60 because persons over the age of 60 are at a greater risk of a heart attack - places safety of passengers at risk. . An employer, obliged to implement AA in terms of the EEA, may decide to promote a black employee over the expensive of other candidates. . Sensible approach - make allowance for permissible discrimination - where an employer within legally defined limits is able to justify the discrimination. . Discrimination on face value might be unfair - but only legally unfair if no justification exists. NELSON MANDELA UNIVERSITY Change the World

Test for Unfair Discrimination

The test for unfair discrimination . The distinction between differentiation, discrimination and unfair discrimination has been explained by the CC in Harksen v Lane: If the differentiation is on a specified ground - unfairness is presumed. If on an unspecified ground, unfairness will have to be established by the complainant. Test for unfairness focuses on the impact of the discrimination on the complainant and others in his/her situation. If differentiation is found not be unfair - no violation.

Establishing Discrimination

Stage 1: Establishing discrimination Discrimination can be established in either of two ways - by linking the differentiation with:

1. one of the listed grounds; or
2. a so-called unlisted ("arbitrary") ground of discrimination - "has the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner." NELSON MANDELA UNIVERSITY Change the World

Determining Fairness of Discrimination

Stage 2: Determining the fairness or otherwise of the discrimination Basic principles regarding the fairness or unfairness of discrimination: If an employee is successful in linking differentiation with a listed ground - this is not only discrimination - the discrimination is also presumed to be unfair. The onus then shifts on the employer to show that discrimination was fair. If an employee is successful in linking differentiation with an unlisted ground - also regarded as discrimination - but there is no presumption of unfairness. The employee will then have to show that the discrimination was unfair.

Burden of Proof for Discrimination

Discrimination on a listed ground ONUS Employer must show fairness Discrimination on an unlisted ground ONUS Employee must show unfairness NELSON MANDELA UNIVERSITY Change the World

Burden of Proof in Discrimination Cases

Burden of proof - who must prove discrimination? Section 11 of the EEA provides that: (1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination - (a) did not take place as alleged (b) is rational and not unfair, or is otherwise justifiable. (2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that (a) the conduct complained of is not rational; (b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair. NELSON MANDELA UNIVERSITY Change the World

Differences in Burden of Proof

• There is accordingly a significant difference with respect to the burden of proof between: complainant's allegation of unfair discrimination on a ground specifically listed in section 6(1); and where the complaint is based on an arbitrary ground.
• Onus of persuasion - rests on employer where a case is based on a listed ground. . Onus of persuasion - rests on the employee in the case of an unlisted ground.
• Employee must identify: V the policy or practice concerned; the ground(s) allegedly applicable; and the reason why he/she believes it constitutes discrimination. NELSON MANDELA UNIVERSITY Change the World

Justifying Unfair Discrimination

Justifying unfair discrimination . EEA prohibits only unfair discrimination - if discrimination on a listed ground - burden of proof shifts to employer to show that discrimination was not unfair. . EEA provides employer with two possible special defences or justification grounds to a claim of discrimination.

1. affirmative action
2. inherent requirements of the job The EEA provides in section 6(2) that - It is not unfair discrimination to - (a) take affirmative action measures consistent with the purposes of this Act (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job. NELSON MANDELA UNIVERSITY Change the World

Affirmative Action Defence

The affirmative action defence . Where applicants or employee are excluded on the basis of affirmative action - employer would presumably admit to discrimination (differentiation based on a listed ground, e.g. race or gender) - which is presumed to be unfair - employer may then defeat this presumption by showing that the AA measures are consistent with purposes of EEA. Minister of Finance and Others v Van Heerden (CC)

• CC held that it made no sense to provide for affirmative action measures in our Constitution, while at the same time classifying affirmative action as presumptively unfair. . "I cannot accept that our Constitution at once authorises measures aimed at redress of past inequality and disadvantage but also labels them as presumptively unfair." - Justice Dikgang Moseneke NELSON MANDELA UNIVERSITY Change the World