Unlawful discrimination in the workplace
It is against the law for employers to discriminate against an employee because of a personal characteristic that they have, or allegedly have. In accordance with article 09 of the South African Constitution all persons are equal before law.
Section 6 of South Africa’s Employment Equity Act states that employees cannot be discriminated against on the grounds 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, or birth. Employees have the right to participate in a trade union and therefore the law prohibits antiunion discrimination by employers. 1
Classifying potential areas of discrimination:
Equal pay for men and women
One of the more important principals of SA Employment Equity Law is the internationally recognised principle of ‘Equal pay for work of equal value’. The Code of Good Practice on equal pay/remuneration for work of equal value was gazetted on 1 June 2015. The Code must be read together with the Employment Equity Amendment Act (“EEA”) and the Employment Equity Regulations, 2014 (“EER”) which came into operation on 1 August 2014. The International Labour Organisation (ILO) has suggested that stereotypes with regard to women’s work, along with traditional job evaluation methods that were designed on the basis of male dominated jobs, have resulted in the weaker bargaining power on behalf of female employees, and employers “may be required to establish the value of male- and female- dominated jobs in order to be able to ascertain whether particular jobs have been undervalued and to align female- dominated jobs with comparable male- dominated jobs in the organisation.” An employee may base a claim on the grounds that they would have received higher pay/remuneration if they were not female, and succeed with such a claim unless the employee can show that a male employee hired to perform the work would have been employed on different terms and conditions.2
There is a perception that age discrimination is not viewed as strongly or as seriously, and is not given equal footing, as race and gender discrimination. Yet age discrimination is one of the great prejudices in the workplace today. Examples of age discrimination in the workplace include situations when a candidate or employee is denied a job or is forced to take early retirement based on their advanced age. However, treating a young worker differently to an older worker is also age discrimination. A manager or business owner who singles younger members of staff out for criticism, solely because of their age, is committing direct age discrimination.
There can be many reasons why an employer may wish to impose a dress code. For example, to communicate a corporate image, to ensure customers can easily identify a member of staff, or for health and safety reasons. When drafting a dress code, an employer should carefully consider whether insisting on or banning a particular form, or item, of clothing would discriminate against staff of a particular race or religion. If so, an employer is advised to investigate whether there are alternatives to the proposed dress code.
Acceptable and unacceptable terminology
Derogatory terms that, for example, refer to somebody’s race are clearly unacceptable and discriminatory. An employer should provide equality training to ensure that employees know what terminology is acceptable and unacceptable, particularly if there is a genuine need to refer to someone’s race, colour, nationality, or ethnic or origin. It is important for employees to remember that certain words have the potential to cause offence. With discrimination, it is often how the recipient perceives words and actions rather than the intention of the person delivering them, and therefore there is a need to be considerate as to how such words might be perceived by others.
How should a manager safeguard against discrimination among employees in the workplace?
If discrimination between employees becomes evident, what is the best way to handle it? Dealing effectively with discrimination is a twofold process:
- Being knowledgeable with regard to antidiscrimination laws
- Paying close attention to what’s happening in your department or company.
Here are five suggested guidelines for managers to deal with any type of discrimination:
- Pay attention to what is not always obvious in your department or organisation: Discrimination is not always obvious and a manager cannot always see it, prove it, or put a stop to it. However, if you turn a blind eye to even a hint of discriminatory behaviour, the organisation will suffer in terms of low morale, employee conflicts, or even lawsuits, among other serious problems that may arise.
- Keep your personal beliefs to yourself: Your personal belief systems regarding race, religion, sexual orientation, and other potentially contentious issues should not affect your duty to monitor workplace discrimination, or cloud your judgement regarding what is right and legal. By the same token be careful of what you say. Think before you say something that might be misconstrued, and teach your employees to conduct themselves the same way. Employees should not be afraid to be themselves, but they do need to be sensitive, and knowledgeable about what is permissible to say.
- Respond quickly: If an employee expresses concern about possible workplace discrimination, respond as quickly as possible to resolve the issue. Allowing it to continue will only add to the employee’s anxiety and allow whatever may be happening to potentially escalate. Establish a clear policy for yourself and others for dealing with the problem.
- Educate yourself:Stay informed about workplace discrimination. Talk with your peers in similar and different industries, read your daily newspaper for information about what’s happening locally, and conduct research on discrimination and harassment law. Find out what it means for you as an employer. Consider paying an attorney who specialises in this area for a one hour consultation and ask as many questions as you can.
- Formalise the organisation’s policy: Create and educate your employees on an anti-discrimination policy. Be aware that no anti-discrimination policy will be taken seriously unless you take action against any discrimination that takes place. If you discover that some kind of discrimination has taken place, decide if you will start with a warning, insist on counselling, or formally terminate the accused.
When an employee witnesses discrimination
It is unacceptable for employees to be placed in a situation where they encounter discrimination against a colleague. What has been witnessed should be taken seriously by the employee who has seen it as well as by the employer who receives a complaint about it from the witness. The main issue is that discrimination is allegedly taking place and has to be verified, and also that the witness feels strongly enough to have made a complaint. As with a complaint from an employee alleging direct discrimination against them, a complaint about discrimination which has been witnessed should be handled just as sensitively.
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