Discrimination law South African labour law

1 discrimination law

1.1 harassment

1.1.1 sexual harassment

1.1.1.1 employer liability
1.1.1.2 other remedies


1.1.2 medical testing

1.1.2.1 hiv/aids


1.1.3 disputes discrimination
1.1.4 affirmative action

1.1.4.1 designated employers
1.1.4.2 employment-equity plans
1.1.4.3 enforcement

1.1.4.3.1 self-regulation
1.1.4.3.2 administrative procedures
1.1.4.3.3 court action
1.1.4.3.4 state contracts

discrimination law

seen generally, there 3 mechanisms designed protect individual employee:

the fourth mechanism of protection protection against unfair discrimination.

the labour relations act 1995 first piece of legislation deal discrimination in workplace.

the eea contains detailed provisions counteract , eliminate discrimination in workplace.

the constitution, right equality, provides important constitutional context employment equity. consideration of constitutional provision indicates elimination of discrimination has 2 bases:

formal equality, or equality in treatment; and
substantive equality, enshrined in adoption of positive measures empower disadvantaged groups in south african society; known affirmative action.

section 6 of eea contains main thrust of act s prohibition against unfair discrimination. provides that

no person may unfairly discriminate, directly or indirectly, against employee, in employment policy or practice, on 1 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.

it not unfair discrimination

to take affirmative action measures consistent purpose of act; or
to distinguish, exclude or prefer person on basis of inherent requirement of job.

harassment of employee form of unfair discrimination, , prohibited on of above grounds.

furthermore, eea places positive duty on every employer take steps promote equal opportunity in workplace eliminating unfair discrimination in employment policy or practice. in circumstances there may duty on employer take reasonable measures accommodate groups of employees.

in regard, code of practice: key aspects of human immunodeficiency virus (hiv)/acquired immunodeficiency syndrome (aids) , employment, code of practice on employment of people disabilities, provides guidelines on how hiv/aids , disability should dealt , accommodated in workplace.

this legislative provision mentions human immunodeficiency virus (hiv) status prohibited ground of discrimination. inclusion makes section 6 of eea wider section 9 of constitution.

section 6 protects employee, not speak of employer; provides no person may discriminate. broader, , may include, inter alia, independent pension fund or independent medical aid scheme, or fellow employee.

in regard, if employee lodges complaint of discrimination against employee, , employer not consult in attempt eliminate discrimination, employer may held liable.

the difference between discrimination , differentiation must kept in mind, not differentiations amount discrimination. there may fair differentiation between employees on basis, example, of educational qualifications or experience or seniority.

generally, differentiation amount discrimination if based on unacceptable reason. if discrimination suffered not listed in section 6(1) of eea, amount discrimination if, objectively, based on attributes , characteristics have potential impair fundamental human dignity of persons human beings, or affect them adversely in comparably serious manner.

once employee has proven there has been differentiation, eea , constitution provide presumed have been unfair discrimination. employer bears onus of proving differentiation fair.

discrimination may direct or indirect:

it direct when , expressly based on 1 or more of grounds listed in section 6 of eea.
it indirect when, although not express, discrimination occurs result of it, when employer imposes gender-neutral criterion, such height or weight, condition employment, , criterion indirectly has disproportionate effect on women.

harassment

the eea provides harassment amounts form of unfair discrimination, , such prohibited. prevalent forms of harassment encountered in workplace are

sexual harassment;
racial harassment;
sexual-orientation harassment; and
religious harassment.

of these, sexual harassment far common.

sexual harassment

the code of practice on handling of sexual harassment cases lists 3 types of conduct constitute sexual harassment:

another way define sexual harassment consider effect of harassment. 3 types of harassment may identified:

the questions remain: perspective 1 analyse conduct see if amounts sexual harassment? test 1 apply? 1 way in victim experienced situation (a subjective test), or 1 try more objective?

a subjective test rely exclusively on perceptions of victim. obvious criticism of such test victims may over-sensitive, , therefore cast net wide.
a purely objective test, on other hand, may narrow. reasonable man test (which is, in terms of common law, applied objective test) implies reliance on male-dominated values.
the reasonable victim test seeks establish compromise. takes account experiences of victim, surrounding circumstances, , question of fault on part of perpetrator.

decided cases inconsistent on test should used.

the code of practice states sexual harassment unwanted conduct of sexual nature. implies subjective test. goes on say, however, sexual attention become sexual harassment

if behaviour persistent;
if recipient has makes clear conduct considered offensive; or
if perpetrator should know behaviour regarded unacceptable.

the code adopts mixture of subjective , objective test.

employer liability

the eea states employer may held liable if made aware of conduct did nothing, or did not expected of reasonable employer.

furthermore, code provides that, first step in expressing concern , commitment dealing problem of sexual harassment, employers should issue policy statement, stipulating following:

all employees, job applicants , other persons have dealings business have right treated dignity.
sexual harassment in workplace not permitted or condoned.
persons have been or being subjected sexual harassment in workplace have right lodge grievance it. appropriate action taken employer.

the code recommends management given positive duty implement policy, , take disciplinary action against employees not comply it. policy on sexual harassment should explain procedure followed employees victims of sexual harassment. policy should state following:

allegations of sexual harassment dealt seriously, expeditiously, sensitively , confidentially.
employees protected against victimisation , retaliation lodging grievances, false accusations.

finally, code recommends policy statements on sexual harassment communicated employees.

other remedies

the employee resigns due sexual harassment may argue constructive dismissal, provide grounds finding automatically unfair dismissal.

a victim of harassment may institute civil claim, based on delict, against perpetrator; may institute claim against employer, based on common-law principles of vicarious liability.

medical testing

the eea prohibits medical testing of employee, unless

legislation requires or permits such testing; or
the testing justifiable.

testing may justifiable in light of

the medical facts;
the employment conditions;
social policy;
the fair distribution of employee benefits; or
the inherent requirements of job.

job applicants protected medical testing.

the eea prohibits psychological , other similar assessments of employees, unless such assessment

has been scientifically shown valid , reliable;
is applied employees; and
is not biased against employee or group of employees.

hiv/aids

the eea lists hiv status 1 of grounds on employee may not discriminated against. south african airways, example, formerly had policy of not employing hiv-positive employees cabin attendants, partly because believed hiv-positive people not have vaccinations, requirement international travel, , @ risk of infection, might transmitted others.

in hoffman v south african airways, court found people living hiv constitute minority, society has responded intense prejudice, stigmatization , marginalization. society s response has forced many of them not reveal hiv status, fear of such prejudice, , has deprived them of otherwise have received. stigmatization court considered assault on dignity.

the eea designed counteract

the need employers may feel test employees hiv/aids; and
the concomitant risk of prejudice employees test positive.

such testing prohibited unless held justifiable labour court, may impose various conditions on such testing, including

the provision of counselling;
the maintenance of confidentiality;
a limitation on period of hiv-testing; and
a limitation on category of jobs or employees in respect of such testing authorized.

employers may make hiv testing available employees part of wellness program, provided takes place confidentially , on basis of informed consent. authorisation labour court not required such testing.

the eea not forbid anonymous testing undertaken epidemiological purposes, or establish prevalence of hiv/aids among workforce.

in joy mining machinery v numsa, court held following considerations should taken account in determining whether or not hiv testing justifiable:

the prohibition on unfair discrimination;
the need such testing;
the purpose of such testing;
the medical facts;
the employment conditions;
social policy;
the fair distribution of employee benefits;
the inherent requirements of job; and
the category or categories of jobs or employees concerned.

the court want informed following, not go question of justifiability, relevant arriving @ proper decision:

the attitude of employees;
the financing of test;
the preparations test;
pre-test counseling;
the nature of proposed test , procedure; and
post-test counseling.

there code of practice on key aspects of hiv/aids , employment, provides guidelines employers , employees on how deal hiv/aids in general.

with regard hiv/aids , disability, code states employee has become ill work may dismissed on grounds of incapacity. mental or physical impairment constitute disability if substantially limiting in respect of entry into, or advancement in, employment.

disputes discrimination

a dispute unfair discrimination must referred commission conciliation, mediation , arbitration conciliation within 6 months of alleged discriminatory act or omission.

disputes of nature may not referred bargaining council.

in referring dispute commission conciliation, mediation , arbitration, referring party must indicate has made reasonable attempt resolve dispute, depending on circumstances.

if conciliation fails, matter may referred labour court, unless parties consent jurisdiction of commission conciliation, mediation , arbitration arbitration.

the labour court may make appropriate order , equitable in circumstances, including compensation, damages, , orders directing employer take preventative steps.

again, once employee proves there discrimination, onus shifts employer prove discrimination fair.

affirmative action

alongside prohibition against unfair discrimination, affirmative action second cornerstone of eea.

according section 2(b) of eea, goal of affirmative action ensure equitable representation of groups in occupational categories , levels in workplace.

equitable representation not defined in eea, section 42 states may determined consideration of

the demographic profile of economically active population, nationally , regionally;
the pool of suitably qualified people in designated groups employer may reasonably expected promote or appoint employees; and
the economic , financial factors relevant sector in employer operates.

affirmative action is, nature, temporary measure. once goal of equality in workplace has been achieved, reason measure fall away.

a potential beneficiary of affirmative action must meet 2 requirements:

there are, in regard, 4 key definitions in eea:

employees 1 of designated groups may approach labour court, citing unfair discrimination, enforce lack of affirmative action. labour court has held, however, there no individual right affirmative action, collective in nature.

designated employers

the prohibition of unfair discrimination applies employers, regardless of size, affirmative-action provisions of eea apply designated employers.

a designated employer defined follows:

an employer employs fifty or more employees; or
an employer employs fewer fifty employees annual turnover in given year exceeds level, employer in agriculture total annual turnover of r2,000,000;
municipalities;
organs of state; or
an employer appointed designated employer in terms of collective agreement.

employers not fall within ambit of definition may still voluntarily indicate intend comply act.

employment-equity plans

the employment-equity plan centrepiece of procedure implementing affirmative action in workplace.

a designated employer has consult workforce on

the conduct of analysis of employment policies, practices , procedures, working environment;
the preparation , implementation of employment-equity plan, achieve reasonable progress towards employment equity in workforce; and
the submission of reports department of labour.

the analysis described above must contain profile of employer s workforce. using profile, employer must determine degree of under-representation of people designated groups in various categories , levels.

the employment-equity plan must include

annual objectives;
the affirmative-action measures have implemented;
annual timetables achievement of goals;
the duration of plan; and
internal procedures resolve disputes interpretation or implementation of plan.

if there under-representation of people designated groups, plan must outline

the numerical goals achieved;
the timetable within these goals have achieved; and
the strategies achieve such goals.

a copy of plan must made available employees. designated employer must assign 1 or more senior manager responsibility , authority , means monitor , implement plan.

designated employers must submit reports department of labour:

if fewer 150 employees employed, report must made every 2 years.
if more 150 employees employed, report must made every year.

designated employers required submit statement employment conditions commission remuneration , benefits received employees in each occupational category , level. if statement reflects disproportionate income differentials, employer must take steps progressively reduce such differentials.

enforcement

the eea provides 4 ways in compliance affirmative-action provisions may ensured:

self-regulation

employment equity plans must include dispute-resolution procedures. employers , employees must use these procedures first.

administrative procedures

a labour inspector, reasonable grounds believing employer not complying eea, may try obtain written undertaking employer comply. if refuses, inspector may issue compliance order, employer may object within 21 days.

court action

the labour court has power

to make compliance order order of court;
to direct commission conciliation, mediation , arbitration conduct investigation assist court;
to order compliance provision of eea;
to hear appeals against compliance orders imposed director-general; and
to impose fines on employers if fail comply eea.

state contracts

designated employers wish enter commercial contracts organs of state must comply eea. must attach offer either

a certificate of compliance issued minister of labour; or
a statement comply.

if these requirements not met, organ of state may reject offer; may constitute grounds cancellation of contract has been concluded.