A simple definition is found in the Oxford dictionary – it defines discrimination as the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age or sex.
The South African Constitution guarantees the right to equality and also gives protection to all from unfair discrimination. In accordance with article 09 of the Constitution, all persons are equal before the law and there cannot 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. The law also prohibits anti-union discrimination by employers. The Employment Equity Act also prohibits discrimination on the basis of family responsibilities and HIV status other than those mentioned above.
Workplace discrimination is to show favour, prejudice or bias for or against a person on any arbitrary grounds, for example on the basis of 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 and birth by an employer.
Types of Discrimination
There are two kinds of discrimination, i.e. fair discrimination and unfair discrimination.
Is there fair discrimination? Yes, the law sets out four grounds on which discrimination is generally allowed:
- Discrimination based on affirmative action
- Discrimination based on the inherent requirement of a particular job
- Compulsory discrimination by law; and
- Discrimination based on productivity.
Discrimination based on Affirmative Action
Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups — blacks, women and disabled persons). Affirmative action aims to achieve equality at work without lowering standards and without unduly limiting the prospects of existing employees, for example by getting rid of discrimination in company polices, procedures and practices. Its main aim is generally to ensure that that the previously disadvantaged groups are fairly represented in the workforce of a particular employer.
Discrimination based on the inherent Requirement 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 can be shown, 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 also fair by law for the employer to discriminate on the basis of productivity when giving an increase, for example increases based on merit. This, of course, would be dependent on the fairness of the criteria utilised for assessing performance and productivity.
Part 2 of this article will deal with unfair discrimination.
Part 3 will deal with identifying discrimination in the workplace.
Part 4 will deal with two areas of discrimination in particular that employers need to be aware of.