Use this A-Z guide to discrimination to avoid unfair discrimination in your company
Accommodation
You have to make reasonable accommodation for people from designated groups (blacks, females and people with disabilities) to ensure that they enjoy equal opportunities in the workplace (Section 15 (2) (c)).
Men and women are entitled to separate facilities.
Where possible, you should provide special toilets for disabled employees and people from religious groups who require different toilet facilities. If practical, employees whose religion requires them to follow dietary laws should be provided with a separate area in which to prepare and eat their food.
You can’t appoint females to a previously all-male workplace, without providing them with proper facilities. Men and women shouldn’t be expected to share showers, sleeping quarters and change rooms. It may also be unfair to expect women to wear uniforms designed for men.
Make sure that your choice of uniform is culturally sound and that you’ve consulted on all the issues surrounding uniforms. Certain cultural groups don’t permit married women to wear trousers – particularly those from more traditional regions. Requiring these women to wear uniform trousers is not culturally sensitive. Dark colours can also be problematic – dark colours may indicate mourning.
Age
You can’t reject applicants purely because of their age. You can’t stipulate age requirements when advertising vacant posts unless the age of the applicant is an inherent requirement of the job.
You cannot hire a person based on their age
The CCMA case law found the owner of video store, who advertised for a ‘Shop Assistant: Age: less than 25’, guilty of unfair discrimination when he refused to interview a 28-year old applicant because ‘she was too old for the job’. The employer tried to justify his reasons for not employing people older than 25 on the grounds that the salary was not high and the older person might be reluctant to accept instructions from a younger person. The Commissioner rejected this. The employer was ordered to appoint the applicant or pay her the equivalent of six months salary. Case No: WE148 – Commissioner Nowall.
It’s not considered unfair discrimination to terminate an employee’s services because he has reached the agreed retirement age (Section 187 (2) (b) LRA).
Appearance
Discrimination based on a person’s physical appearance isn’t specifically provided for in the EEA. However it’s unfair to prefer attractive applicants, or to reject applicants because they are unattractive, unless it is an inherent requirement of the job to be good-looking. This includes models, people who are employed to promote beauty and health products or actors who are required to portray the role of an attractive person.
Belief
Employees have the constitutional right to embrace any belief system, provided this doesn’t interfere with their ability to do their jobs e.g. a shoe salesperson refusing to deal with leather products because he believes it’s cruel to kill animals for their skins. It’s not your concern if a worker believes it’s wrong to eat animal flesh or that meditation is essential for spiritual upliftment, as long as employees don’t spend their working hours promoting their beliefs.
Birth
Did you know that you can’t hire a person based on how or where they were born?
Society generally accepts that in a ‘normal birth’ the baby is born headfirst, facedown. However, some cultures support the view that anyone born ‘unnaturally’, e.g. a breach birth, is cursed. These cultural taboos also extend to babies born with part of the placenta covering their heads, or those who are born by means of Caesarean section.
Employers are free to hold personal views on birth, but this doesn’t give them the right to discriminate against anyone who was not born ‘naturally’.
Black people
Definition: black people
A generic term that means Africans, Coloureds and Indians (section 1).
Colour
A model’s skin colour can be taken into account
It’s unfair to discriminate against an applicant or employee purely because of her skin colour. There are exceptions, for example, where you are looking for someone to promote skin-lightening products. You would be within your rights to prefer a light-skinned black person, because of the inherent requirement of the assignment.
Conscience
People who refuse to carry guns because of their religion or conscience, or who object to serving alcohol or assisting with abortions, are free to follow their beliefs, provided this doesn’t interfere with their jobs.
Designated groups
Definition: designated groups
Black people, women and people with disabilities.
Designated persons must be given preference for appointment and promotion, provided they’re suitably qualified and comply with the inherent requirements of the job.
Disability
Definition: Disability
A long-term or recurring physical or mental impairment which substantially limits the person’s prospect of being employed or advanced (Section 1).
A person who is temporarily unable to walk because his leg is in plaster isn’t considered a designated person in terms of EEA, unless the injury results in a permanent disability.
People living with disabilities are considered designated persons and should be given preference for appointments and promotions, provided they are suitably qualified and comply with the inherent requirements of the job. For example, it’s an inherent requirement that a switchboard operator is able to hear properly. Therefore, it wouldn’t be unfair to refuse to appoint an applicant who is hard of hearing. The EE Commission has ensured that companies put the spotlight on hiring disabled persons more than ever before.
Employment policy or practice
Ensure that employment policies and practices are free of discriminatory practices (Section 1: Definitions). These policies and practices must include the following:
· Recruitment procedures, advertising and selection criteria
· Appointments, including the appointment process
· Job classification and grading
· Remuneration, employment benefits and terms and conditions of employment
· Job assignments
· Working environment and facilities
· Training and development
· Performance evaluation systems
· Promotion
· Transfer
· Demotion
· Disciplinary measures short of dismissal
· Dismissal
Ethnic origin
You may not reject employees because they belong to the ‘wrong’ tribe, or the ‘wrong’ caste, or the ‘wrong’ clan, etc.
Facilities
Workplace facilities, such as toilets, restrooms, showers, etc should be accessible to all employees. The courts have ruled that racially segregated facilities are unconstitutional and therefore illegal. However, the courts have ruled that it isn’t unfair to have separate facilities for senior managerial staff. The issue of providing facilities is fraught with potential tension. You must consult widely to provide facilities that accommodate all staff.
It’s not unfair to provide women and disabled persons with separate facilities.
Family responsibility
Definition: family responsibility
An employee’s responsibility towards a spouse, partner, dependent children, or other immediate members of the family who need care and support.
An employer may not assume an applicant is incapable of doing a particular job because of his family responsibility, unless this ability has been tested. For example, an employee who has small children may be just as capable of performing adequately in a particular job as a single, childless applicant.
You must offer the employee alternate work, where possible, if the employee cannot work shifts because of family responsibilities (Basic Conditions of Employment Act 75 of 1997). If you’re unable to change the worker’s employment conditions, he may be dismissed for operational reasons, provided a fair process is followed.
Many companies’ practices are inherently discriminatory. Regularly setting important meetings afterhours would be discriminatory to those who have small children. Many clients cite customer need as the reason for setting these meetings afterhours. It’s possible to educate your customers and to accommodate staff by setting meetings in normal working hours.
Gender
It’s unfair to discriminate against an applicant or employee because of their gender. However, as women are considered designated persons, it’s not unfair to prefer a female applicant, provided she is suitably qualified.
There are some posts where gender is an inherent requirement, such as an all female old-age home, where the residents may have strong traditional, moral or religious objections to being tended to by a male nurse. In the security industry, people have the right to be searched by members of the same gender.
HIV Status
No one can discriminate unfairly against anyone because of their HIV status. Employees and applicants may not be tested to ascertain their HIV status unless the Labour Court has ruled that the test is justifiable because of an inherent requirement of a job.
Language
South Africa has 11 official languages. You’re prohibited from discriminating against employees because of their language, unless the ability to read, write or speak a particular language is an inherent requirement for a job. For example, employers would be within their rights to insist that employees be able to speak Zulu, if it can be shown that workers wouldn’t be able to perform adequately without being reasonably fluent in Zulu.
Marital Status
You can’t discriminate against an employee because he’s single, married, separated, widowed or divorced. Some employers believe it’s easier to deal with unmarried employees, because they aren’t ‘saddled’ with family responsibilities, while others believe that married workers are more stable.
There are those who consider divorce or separation immoral. However, an employee’s marital status isn’t a reliable indicator of worth and you should use other measures to ascertain whether a particular worker is suitable for appointment or advancement.
Obesity
It’s estimated that at least 30% of South African adults are obese. Apart from the serious health problems linked to being overweight, obese people are often victims of discrimination.
Even though obesity isn’t specifically provided for in the EEA, you can’t assume that an overweight worker will be less effective than someone who is of normal weight. Unless it’s an inherent requirement for an employee to be lean and athletic, such as gym instructors or people who promote weight loss products and programmes.
Qualifications
You must avoid unfair discrimination by insisting that employees have certain qualifications, unless it can be shown that the qualification is an inherent requirement of the job. For example, it would be unrealistic to require a secretary to have a degree, if a person with lesser qualifications can do the job. You must ensure there are no ‘artificial’ barriers to appointment and promotion. The best way to avoid this is to evaluate each job category to ascertain what the required ‘entry-level’ qualifications are. If you need advice in this regard you should approach an employment agency, the National Qualifications Framework Authority, or any Sectoral Education & Training Authority that’s active in your particular sector.
Political opinion
You may not reject employees because of their political beliefs
South Africans are free to support the political party of their choice without fear of persecution and victimisation. You can’t reject an employee because of his political opinion, unless his political affiliation would affect his ability to perform in a particular job.
Pregnancy
Definition: pregnancy
Intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy (Section 1: Definitions EEA).
You can’t discriminate against an employee who intends starting a family, or has terminated a pregnancy for whatever reason. It’s also unfair to consider someone unsuitable for appointment or promotion merely because she’s pregnant.
You may not terminate an employee’s services because she’s pregnant or breastfeeding, nor can you refuse to re-employ the worker after the baby has been born.
Dismissal is automatically unfair; (completely unjustifiable) if the reason for it is related to the employee’s pregnancy (Section 77(3) LRA).
Race
No one may discriminate unfairly against anyone because of that person’s race. However, it’s not considered unfair discrimination to take affirmative action measures to ensure that people from previously disadvantaged groups have equal opportunities and are equitably represented in the workforce.
Prohibition against discrimination on the grounds of race should be considered together with prohibition against discrimination based on ethnic origin and colour. This will help to ensure that people from across the spectrum are represented in the workforce.
Religion
Your workplace must be accessible to people from all religions, provided they are suitably qualified and comply with the inherent requirements of the job.
The various religions have different requirements, which might impact on the operations in the workplace. You should make a reasonable attempt to accommodate people from different religions, but not if this will have a negative effect on productivity and general morale.
Sexual orientation
No one can discriminate against anyone else because that person is a lesbian female, homosexual male or heterosexual male or female. The definition includes transvestites and transsexuals (persons who have undergone surgery to change their gender).
This prohibition against discrimination goes both ways. It’s as unfair for homosexuals to discriminate against heterosexuals because they’re not gay, as it is for a heterosexual to discriminate against someone who is gay.
Social origin
There’s a general tendency for people from similar backgrounds and interests to flock together and this is completely acceptable in the social context. It’s not acceptable if choices based on social origin are made in the workplace. Employers should promote diversity and avoid selecting workers simply because they’re wearing the ‘old school tie’. The purpose of the EEA is to ensure that people from all groups are equitably represented. Staff selection should not be based on whether a person is from the ‘right’ or ‘wrong’ background, but on his ability to do the job.
Suitably qualified
A person may be considered suitably qualified for a job as a result of any one combination of that person’s (Section 20(3) of the EEA):
· formal qualifications e.g. those required by a doctor, nurse, teacher, lawyer, artisan, etc.
· prior learning e.g. experience and skills gained at school or other institutions, or by working as a volunteer
· relevant experience, i.e. experience that relates to the job
· the capacity to acquire, within a reasonable time, the ability to do the job.
You must consider all the above factors, where applicable. In some instances prior learning and relevant experience will be insufficient if the applicant is required to have a formal qualification, such as a doctor.
Some employers try to discourage the wrong applicants from applying by stipulating that the applicant is required to have ten years relevant experience. However, in terms of the EEA you may not unfairly discriminate against anyone purely because he lacks relevant experience. This is intended to protect those who have not yet had the opportunity to acquire the necessary experience because they were denied employment opportunities in the past.
Union Membership
The Constitution and the LRA guarantee the right to freedom of association. This means that employees may join, or choose to join, any union that’s active in their particular sector (the only exception is a workplace with a Closed Shop Agreement, when employees are required to join a particular union as a condition of employment).