By Nonhlanhla Mayise (LLB)
Discrimination is a serious issue in the workplace, and it is important to know your rights as an employee. In South Africa, the Employment Equity Act (EEA) 55 of 1998 and the Labour Relations Act provide legal protection against unfair discrimination. However, it is essential to note that not all types of discrimination are considered unfair under these acts. Some forms of discrimination can be deemed fair if they are based on valid operational reasons rather than personal beliefs held by the employer.
Section 6 of the EEA and section 187 of the Labour Relations Act explicitly prohibit unfair discrimination against employees on arbitrary grounds such as age, race, sex, and pregnancy, among others. It is crucial to understand the distinction between fair and unfair discrimination. For instance, providing travel allowances exclusively to business marketers while excluding other employees may seem like discrimination. However, it can be considered fair discrimination if there are valid operational reasons behind this decision, rather than being based on the employer’s personal beliefs.
Discrimination in the workplace can take two forms: direct discrimination and indirect discrimination.
Direct discrimination occurs when an employer treats an employee differently based on one of the listed grounds in the act. These grounds include 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, birth, or any other arbitrary ground.
Indirect discrimination, on the other hand, arises when certain working conditions or policies disproportionately favour or support specific types of employees while excluding others. For example, a policy requiring all employees to have shaved heads and beards can put individuals who maintain hair and beards for religious reasons at a disadvantage. This constitutes indirect discrimination.
It is important to note that discrimination is also prohibited under the South African Constitution. Sections 9(3) and (4) of the Constitution explicitly protect individuals from any form of discrimination. This means that employees have a constitutional right to be free from unfair discrimination in the workplace.
Pregnancy is recognized as a listed ground for discrimination. If you believe that you have been treated unfairly due to your pregnancy, you must establish a link between the non-renewal of your employment (for example) and your pregnancy. When assessing the fairness of the employer’s actions, the following factors will be taken into account:
Is it an inherent requirement of the position that the employee should not be pregnant?
Does the pregnancy pose a risk to the health and safety of the employee, such as heavy lifting, prolonged standing, extensive walking, or exposure to long and strenuous working hours?
Has a risk assessment been conducted, considering alternative arrangements or working conditions to accommodate pregnant employees?
Is the employee unable to fulfil her employment obligations due to the pregnancy?
It is essential to know that your employer cannot unilaterally change your terms and conditions of employment, such as your working hours, reporting structure, or job duties, solely because of your pregnancy. Such actions would amount to unfair labour practices. If you experience such treatment, you have the right to lodge a complaint with relevant dispute resolution institutions like the CCMA (Commission for Conciliation, Mediation, and Arbitration).
Remember, understanding your rights and the laws that protect you against discrimination is crucial for maintaining a fair and inclusive work environment.