Inequality in the workplace what constitutes unfair discrimination?

SASOHN

DISCRIMINATION

Many people do not clearly understand the definition of discrimination, and are therefore uncertain if they should report perceived discrimination in the workplace, and how to go about reporting it. In the workplace, discrimination is the show of favour or bias, towards or against, a person on arbitrary grounds, such as 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 or birth, by an employer or another employee.

There are two kinds of discrimination:
1. Fair discrimination – the four legal grounds on which discrimination is generally allowed
2. Unfair discrimination – an employer’s policy or practice that shows favour, prejudice, or bias against employees that does not qualify as fair discrimination.

 

The four types of fair and legal discrimination Discrimination based on affirmative action

Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups, such as black employees, women and disabled persons). Affirmative action aims to achieve equality at work without lowering standards or unduly limiting the prospects of existing employees, e.g. by replacing discriminatory company policies, procedures and practices. The purpose is to ensure that previously disadvantaged groups are fairly represented in the workforce.

 

Discrimination based on the inherent requirements of a job

Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required qualifications. If such requirements are transparent, discrimination will be fair; for example, a person with extremely poor eyesight cannot be employed as an airline pilot.

 

Fair compulsory discrimination by law

The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after giving birth.

 

Discrimination based on productivity

It is fair, by law, for the employer to discriminate on the basis of productivity when considering salary increases or promotions, based on merit. This is dependent on the fairness of the criteria used to assess performance and productivity.

 

The two forms of unfair discrimination

Direct discrimination

Direct discrimination is easily identifiable and involves overt differential treatment of employees and job applicants on arbitrary grounds. For example, an employer follows a policy of remunerating a female employee on a lower salary scale because she is a woman, while a male employee is remunerated at a much higher scale for doing the same work.

 

Indirect discrimination

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

The law also emphasises that:

• Sexual harassment will be prohibited

• Medical testing will not be allowed unless it is an inherent requirement of the job

• Psychological testing or other assessments cannot be done, unless such tests are validated and will not be biased

• HIV testing can only be carried out if authorised by the Labour Court.

These protections also apply to applicants for employment. Essentially, one needs to consider the impact of actions, policies and procedures when evaluating discriminatory practices, rather than the intention thereof.

 

SOUTH AFRICAN LAW

Promotion of Equality and Prevention of Unfair Discrimination Act (Act No. 4 of 2000)

In terms of section 7 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), discrimination based on the prohibited ground of race is considered unfair, unless it is established that the discrimination is fair.

 

South African Human Rights Commission and the Constitution

The South African Human Rights Commission (SAHRC) is mandated by section 184 of the Constitution of the Republic of South Africa to promote respect for human rights and a culture of human rights; to promote the protection, development and attainment of human rights; and to monitor and assess the observance of human rights in South Africa. The Commission does so through a number of means, one of which is by conducting research to develop better social systems/political programmes.

 

Employment Equity Act (Act No. 55 of 1998)

The Employment Equity Act (EEA) was passed in order to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

 

Broad-Based Black Economic Empowerment Act (Act No. 53 of 2003) and Broad-Based Black Economic Empowerment Amendments Act (Act No. 55 of 2013)

These are reflections of the EEA and provide practical legislative definitions and policies to realise substantive equality. Important aspects of these laws include the definition of black people (Africans, Coloureds and Indians), and the need to empower marginalised and vulnerable groups, including women, the youth and people with disabilities, as well as people who live in rural areas.

 

INEQUALITY

The idea of formal equality remains useful in cases of direct discrimination based on race, but falls short in dealing with cases of indirect discrimination, where equal treatment prejudices those who are different. Whereas formal equality tries to ensure equal treatment for all, regardless of identity, substantive equality aims to achieve equal outcomes by treating people and groups differently. Different treatment is justified where some people are discriminated against on the basis of their identities or characteristics. This is reflected in the endorsement of positive redress measures, or affirmative action, in section 9(2) of the Constitution.

 

Current trends

In terms of complaints received by the SAHRC, violations of the right to equality continue to be the highest recorded grievance made to the SAHRC. In the financial year ending 31 March 2016, 16% of complaints received alleged a violation of the right to equality. A total of 74 919 equality-related complaints were received, two thirds of which were classified as race-related discrimination.

Since fundamental inequalities exist in society and the economy, it is crucial that private individuals work together with the state to achieve substantive equality. Regardless of the laws in place to govern racism and other forms of discrimination, each individual has the responsibility to act and interact with others in such a way that she or he does not discriminate against another person.

The measure by which we look at others determines the decisions we make in relation to those people. Understanding the measure that is required for the decision making, and relating that to fairness/equality, is of utmost importance. It is our personal mind sets that determine what measure we look at for decision making – not the law.

 

SCENARIOS

Scenario 1

Four people apply for the same position at a company. The position is for a welder who does heavy lifting of steel frames, and warehouse supervision that requires submitting daily computerised production reports. The interviewers need to use a specific set of measures to determine which one of the employees is most suitable for the position.

Measure A – the job description of the position to be filled

Measure B – BBE reasoning for the company to appoint this person

Measure C – gender and physical fitness

Measure D – highest level of education; computer proficiency; leadership/supervisory skills


(See Table 1)

How they ‘measure’ up: (see Table 2)

 

If the four applicants are interviewed by four different managers, each of whom uses a different measure to determine if the applicant is suitable for the position, based on what they believe to be the most important requirement, and the chief executive officer (CEO), in an effort to allow equal opportunity, instructs the managers to approve any applicant who reaches a score of 5, the following would happen:  (see Table 3)

Based on the CEO’s effort to obtain equality, he can appoint any one of the four applicants if he does not investigate and understand the measures used to make the decisions. Understanding the measures used to form an opinion about someone is the key to avoiding discrimination. Four different opinions are formed for each applicant, viewed from four different measures. On a personal level, we often do the same: we form opinions of others based on our own personal measures and this can lead to discrimination on a personal level.

Personal measures to form opinions of others are generally based upon our personal frames of reference or past experiences. Scenarios 2 and 3  (see Table 4) demonstrate this. 

Personal measures can change over time due to life experiences, or forming a different frame of reference during decision making. For example:

• Person 3 in scenario 3 may find herself stranded on the road with a flat tyre one day, a few years after being hijacked; a white man stops to help her change her tyre and her new frame of reference about white people on the road could change her opinion about them

• Person 2 in scenario 2 may end up working for a black man one day, who is the best boss she could ever hope for, and her new frame of reference about black men could change her opinion about them.

 

LAW VERSUS PERSONAL FRAMES OF REFERENCE

 It is the law to drive within the speed limit of any road.

• Have you ever driven faster than the speed limit on any road? If yes, you broke the law of South Africa.

 We say:  “When I drive fast I am in a hurry to get somewhere”, but “When someone else speeds past me, that person drives like a maniac”.

It is the law not to use your cell phone while driving.

• Have you ever taken a call or typed a message while driving? If yes, you broke the law of South Africa.

 We say: “When I answer my phone while driving it is a very important call I have to take”, but “When someone else talks on their phone while driving that person is irresponsible”.

It is the law of the country that you may not discriminate against anyone based on their race.

• Have you ever treated someone differently or spoken negatively and blamed it on the race of that person?  If yes, you broke the law.

 We say:  “When I make a negative racial comment it is fine, because someone from that race caused harm to me or my family and now they are all the same to me”, but “When someone else makes a negative comment against my race, that person is a racist”.

The purpose of the law is only to make known to someone what actions are deemed wrong, but the law on its own does not change or control the actions of any individual. It is common that we justify our own actions and lawlessness, but judge negatively the same actions and lawlessness of others.

Personal frames of reference in relation to our understanding of the law may be illustrated by posing the following questions:

• Did a person who murdered someone break the law? Yes

• Did someone who drove above the speed limit break the law? Yes

• Are both people committing acts of lawlessness? Yes

• Should both people face applicable charges under the law that they broke? Yes, that is fair and equal treatment

• Are the consequences the same? No, this is where different measures should be applied, because two acts of lawlessness are different/unequal in nature.

 

STEPS TO TAKE WHEN UNFAIR DISCRIMINATION TAKES PLACE

Any employee who feels that she or he has been unfairly discriminated against, or believes that an employer has contravened the law, can lodge a grievance, in writing, usually to the human resources manager. If the matter is not satisfactorily resolved at the workplace, it can be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within six months of the unfair discrimination taking place. If the CCMA is not able to resolve the dispute through conciliation, then the matter can be referred, either for arbitration through the CCMA (if both parties agree), or to the Labour Court for adjudication.

 

RESOURCES

1. Campbell BJ. The two confusing definitions of racism. 2019 Aug 26. Available from: http://medium.com/handwriting-freakoutery/the-two-confusing-definitions-of-racism-2d685d3af845 (accessed 29 Jan 2019).

2. Research brief on race and equality in South Africa 2013 to 2017. 2017. Available from: https://www.sahrc.org.za/home/21/files/RESEARCH%20BRIEF%20ON%20RACE%20AND%20EQUALITY%20IN%20SOUTH%20AFRICA
%202013%20TO%202017.pdf (accessed 4 Feb 2019).

3. Israelstam I. What acts by an employer are defined as unfair discrimination? 2015 May 14. Available from: https://www.skillsportal.co.za/content/what-acts-employer-are-defined-unfair-discrimination (accessed 24 Oct 2018).

4. CCMA Info Sheet: Discrimination. 2002 Jan. Available from: https://www.safmh.org.za/documents/human-rights-violations/CCMA%20DISCRIMINATION%20INFO%20SHEET.pdf (accessed 24 Oct 2018).

5. Admin in Labour Law. Discrimination in the workplace. 2017 Jun 21. Available from: http://www.allerdyce.co.za/discrimination-in-the-workplace/ (accessed 24 Oct 2018).

6. Phala M. Employees have a legal resource against unfair discrimination in the workplace. Available from: https:www.labourguide.co.za/most-recent/2464-employees-have-a-legal-resource-against-unfair-discrimination-in-the-workplace (accessed 24 Oct 2018).

7. Lodder D. Eksrede Manne- en Vrouekampe (producer). Geregtigheid [DVD]. Pretoria: Eksderde; 2019.1 DVD: 42min., sound, colour, 12cm.

Filna Claassen
Operations Director: First Choice Occupational & Mobile Health (Pty) Ltd.
e-mail: mobileclinic@medicalsurveillance.co.za

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