By NDUMISO KHUMALO
Understanding discrimination in the workplace
The South African Constitution guarantees the right to equality, and also gives protection against all forms of unfair discrimination in the workplace. Discrimination can take place almost everywhere and in any form, however in this article we will only focus on discrimination in the workplace that is protected by the Employment Equity Act.
Discrimination can be classified into two parts, namely fair discrimination and unfair discrimination.
a) Fair discrimination in the workplace
This is discrimination allowed by law. Grounds of justification must exist in order for this discrimination to be regarded as fair. There are four grounds of discrimination in the workplace, namely:
discrimination based on affirmative action (e.g. this is where the company polices give first preference to previously disadvantaged groups);
discrimination based on inherent requirements of a particular job (e.g. a person with extremely poor eyesight cannot be employed as an airline pilot. An inherent requirement of a job depends on the nature, required qualification and the ability to perform the job);
compulsory discrimination (e.g. the law does not allow the employer to employ children under the age of 15 years); and
discrimination based on productivity (e.g. when the employer chooses which employees should be given an increase based on performance, there must be formal criteria utilised for assessing performance and productivity).
b) Unfair discrimination in the workplace
This is discrimination where there are no grounds of justification. Unfair discrimination may be by reason of:
– Marital status
– Family responsibility
– HIV status
– Disability; etc.
Once it has been proved that discrimination is based on any one or more of the above listed grounds, such discrimination is regarded as unfair discrimination.
The purpose of the Employment Equity Act
The Employment Equity Act (‘the Act’) came into operation to rectify the inequalities of the apartheid government, which did not consider people’s rights. The purpose of the Act is to achieve equity in the workplace by promoting equal opportunity, privacy and fair treatment.
The Act has two main objectives, namely:
a) To ensure freedom from discrimination
Discrimination may be caused by the employer or the employee(s). The employer has the responsibility to monitor, manage and help to prevent discrimination in the workplace. In doing so, the employer must:
develop a workplace policy that prohibits discrimination by educating employees about discrimination;
encourage employees to respect each other’s differences;
equip staff on how to respond to discrimination; and
make sure that workplace policy is properly enforced.
b) To promote affirmative action
Affirmative action aims to right the wrongs of the past by favouring defined groups of individuals that were discriminated against in the past. It refers to any policy that is intended to promote opportunities for members of historically disadvantaged groups. The aim is to level opportunities, especially in the area of employment, business and education.
Employers must implement affirmative action measures to ensure that suitably qualified people from the designated groups have equal opportunities and are equitably represented in all occupational categories and levels in the workplace of a designated employer.
What remedies are available for victims of discrimination in the workplace?
A victim of unfair discrimination in the workplace may refer a dispute to the employer, who should then attempt to resolve the dispute between the parties through internal dispute resolution measures. If a dispute remains unresolved, any party may refer a dispute to the CCMA with 6 months after the act that is alleged to constitute unfair discrimination. The CCMA will attempt to resolve the dispute through conciliation. If the dispute remains unresolved, the dispute may be referred to the Labour Court for adjudication.
HIV and the workplace
HIV in the workplace has always been a contentious issue in terms of employment law. This is because of the stigma attached to HIV and Aids and the general lack of understanding of the illness.
As has been highlighted, the South African Constitution guarantees the right to equality, and also gives protection to all forms of unfair discrimination in the workplace. People living with HIV and Aids are also protected by the Constitution in that they have a right to choose what career path they want to pursue without being unfairly discriminated against. In terms of section 23 of the Bill of Rights, everyone has the right to fair labour practice.
In terms of section 7(2) of the Employment Equity Act, the testing of an employee to determine the employee’s HIV status is prohibited unless the Labour Court declares such a test to be justifiable.
In terms of section 7(1) of the Employment Equity Act, the medical testing of an employee is prohibited, unless (i) legislation permits or requires the testing; or (ii) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.
It is of vital importance that employers implement health and safety regulations in the workplace in order to ensure that employees have an understanding of HIV, and are properly trained to deal with any situation that may arise in the workplace where transmission may occur, without endangering themselves.
Testing for Covid-19 does not fall within the ambit of testing that is prohibited, as it is justifiable in light of medical facts and employment policy. However, it is not justifiable to compel an employee to test for Covid-19 where no valid reasons exist. If the employee is asymptomatic but he/she has been in contact with someone who is Covid-19 positive, the employer must inform the employee to self-isolate for a required period of time before returning to work.
- Ndumiso Khumalo is an Attorney at the Rhodes University Law Clinic
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