Discrimination

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- Featured article by LAWYERS-ONLINE.CO.ZA

What is discrimination?

Discrimination can be defined as the unfair treatment of a person, racial group, minority, etc. It is an action based on prejudice. Discrimination can be to show favour, prejudice or bias for or against a person on any arbitrary grounds on the basis of one of more of the following: - race, gender, sex, pregnancy, marital status, family responsibility, ethic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth but an empl oyer.

There are two types of discrimination, namely: - fair and unfair discrimination. The law sets out four grounds on which discrimination is generally allowed – based on affirmative action; based on inherent requirements of a particular job; compulsory (ie by law); and based on productivity.

Affirmative action measures are designed to promote fairness in favour of the designated groups – women, disabled, and blacks) – called “employment equity”. The aim is to achieve equality in the workplace without lo wering the standards and unduly limiting the prospects of existing employees. Its main aim to generally ensure that previously disadvantaged groups are fairly represented in the workplace of a particular employer.

Any discrimination based on the inherent requirement of any particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job as well as the required qualifications. If such requirements can be shown, discrimination will be fair.

Compulsory discrimination by law includes not allowing an employer to employ a pregnant woman four weeks prior to confinement or children under the age of 15 years.

Discrimination based on productivity includes the fairness of an employer to discriminate on the basis of productivity when giving raises – this could be based on merit. This is however dependant on the fairness of the criteria utilised for assessing performance and productivity.

Unfair discrimination on the other hand, is the employer’s practice or policy showing favour, prejudice or bias against employees in terms of the abovementioned grounds and which is not fair.

There are two forms of unfair discrimination; namely: - direct and indirect. Direct discrimination is usually easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds.

Indirect discrimination is usually not as easily recognisable as it is more subtle. It involves the application of practices and policies that are apparently neutral and do not explicitly distinguish between employees and job applicants but that in reality, have disproportionate and negative effects on certain individuals or groups of people.

Essentially one has to look at and give rise to considerations the impact of the actions, policies and procedures when evaluating discriminatory practices rather than the intention.

If you as an employee feel that you have been discriminated against, or that an employer has contravened the law, lodge a grievance in writing with the employer. The matter can thereafter be referred to the CCMA within six months where the cause of action arose if the action cannot be resolved within the workplace. If the CCMA is not able to solve the matter / dispute through conciliation, the matter can then either be referred for arbitration, providing that both parties agree, or the Labour Court for adjudication.

Date: 17th June 2014
Legislation: The Constitution of the Republic of South Africa, Act 108 of 1996
Employment Equity Act, 55 of 1998
Basic Conditions of Employment Act, 75 of 1997
Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000