What is workplace discrimination?
Discrimination occurs when an employer treats an employee differently based on physical attributes or other factors that are objective.
It is important to note that discrimination is not always unfair in South African law. There can be fair discrimination and an example of that would be affirmative action policies.
This is where laws are passed by the government to make sure that everyone has some kind of access to the economy. Therefore, just because you’ve been discriminated against doesn’t make it unfair.
What is unfair discrimination
Unfair discrimination occurs when an employer shows favour prejudice or bias against someone or for someone on a specifically prohibited ground.
In accordance with article 09 of the South African Constitution, all persons are equal before the law and there can’t be any discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
Antiunion discrimination is also prohibited by law. Additionally, the Employment Equity Act prohibits discrimination based on family responsibilities and HIV status besides those mentioned above.
Direct discrimination or Indirect discrimination.
There are two forms of discrimination- direct discrimination or indirect discrimination.
An example of direct discrimination is where it’s very easily identifiable that the employer is treating two people differently. For example, when an employer follows a policy of paying men more because they are men whereas females earn less in the workplace. That would be a form of direct discrimination.
Indirect discrimination on that on the other hand is not so easy to identify. It’s more undercover in the workplace and this could be in workplace policies or practices where the effect of those things cause discrimination in a particular area.
The important thing to understand is the Employment Equity Act. What does the Employment Equity Act state; it states that harassment of any employee is a form of unfair discrimination, medical testing of an employee cannot be done unless that person has given consent, HIV testing any kind of testing which can also be forms of discrimination if the policies are not done fairly.
When can discrimination be done fairly?
Remember, not all discrimination is unfair. The law states that it is not unfair discrimination. If the employer takes affirmative action measures in terms of the Employment Equity Act , that’s not going to be unfair discrimination or where the employer makes specific requirements for a job because those are the requirements, for example going to cut trees in the forest, you’re going to need able-bodied strong individuals, is a 55 year old female suitable for that job? No, the inherent requirement is someone who is 20 or 30 years old, who’s got a physical built to go and cut the trees, load the logs onto the truck etc. That would be a form of fair
What can I do if I have been unfairly discriminated against?
Unfair discrimination is unfortunately a common issue in the workplace. Employees must lodge a grievance in writing which means you must give the employer an opportunity to remedy the situation. If your employer has failed to remedy the situation you can refer the matter to the CCMA. You have six months to do so from the date the discrimination has occurred.
The CCMA will then hold a conciliation to see if the matter can be resolved amicably between you and the company and if that fails you can either refer the matter to arbitration if you earn less than the threshold or to the labour court.
