When is Discrimination in the Workplace Unfair and What Can You Do?
It is important to understand that it is not seen as discrimination in the workplace if an employer discriminates for affirmative action reasons. Employers who have 50 or more employees or who have annual income exceeding the amount stipulated by the Employment Equity Act, organs of state, employers who voluntarily comply with the affirmative action requirements, employers who have been ordered to comply by a bargaining council, and municipalities are required to follow affirmative action regulations. Discrimination in the workplace is also not unfair if it prefers specific people because of job requirements or excludes certain people because they do not meet the job requirements. Discrimination based on productivity is allowed as well as discrimination by law.
Discrimination in the workplace for any other reason is not allowed according Section 6 of the Employment Equity Act. Discrimination is unfair if it is for reasons such as race, sex, gender, age, sexual orientation, family responsibility, pregnancy, marital status, HIV status, disability, religion, ethnicity, conscience, social origin, culture, belief, political opinion, birth, or language. Disputes about unfair discrimination in the workplace must be referred to the CCMA for resolution within 180 days or six months from date of incident. Though you cannot have legal representation at the conciliation hearing, it is allowed and recommended for the arbitration hearing, if the dispute cannot be resolved at the conciliation hearing, or if it must be referred to the Labour Court for a decision.
Examples of unfair discrimination in the workplace include:
- Discriminating when retrenching employees based on race.
- Discriminating in pay for equally qualified employees who perform the same duties in the same position.
- Not giving benefits or compensation for employees while others at the same company receive them.
- Refusing usage of public restrooms for certain employees based on their colour.
- Discriminating against an employee by refusing promotion based on the fact that she is pregnant.
- Drug testing only selected employees based on profiling.
- Paying female employees less because of their gender.
Two types of discrimination in the workplace exist: Direct discrimination and indirect discrimination. An example of direct discrimination is where the employer allows certain employees to use the restrooms in the facility based on their race, or pays men more than women for the same work. An indirect form of discrimination, which is often more difficult to prove, is when the employer allows, and turns a blind eye, to sexual harassment of female employees by male employees. The impact of the employer’s actions or failure thereof must be considered. It is essential to gather as much evidence as possible regarding discrimination, including witness statements and video footage. Because it is often difficult to prove, we recommend that you make use of experienced labour law attorneys to help take the necessary steps against the employer by first submitting the complaint to the CCMA or the relevant bargaining council.
An employer can, for instance, not enforce drug testing if it has not been stipulated as part of the employment contract. They can also not choose to only test a selected group, such as front-of-house staff in the restaurant who is of one race group, while not also drug testing the other front-of-house employees because they are from a certain race group. Note that it is important to follow correct procedures in bringing the matter to the CCMA for dispute resolution and here also the expertise of labour law attorneys will be helpful in first determining whether the employer has discriminated, the nature of the discrimination, and the merits of your case.
Contact our labour attorneys for legal assistance regarding discrimination at the workplace at firstname.lastname@example.org or on (011) 234 2125.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.