Workplace discrimination is not always obvious.
While racial slurs, blatant sexism or an employer openly refusing to hire someone because of their age are clear examples, discrimination often takes more subtle forms.
It could be a female employee discovering that a male colleague performing the same work earns significantly more. It could be an older employee repeatedly overlooked for training opportunities or a qualified job applicant denied an interview because of a disability.
In South Africa, legislation protects employees against unfair discrimination. Understanding these protections and knowing how to enforce them are essential to ensuring fair treatment in the workplace.
The Employment Equity Act (EEA) is the primary legislation protecting employees against unfair workplace discrimination. Its purpose is to eliminate unfair discrimination and promote equal opportunities and fair treatment in employment.
Under Section 6 of the act, employers may not unfairly discriminate against employees, directly or indirectly, on specified or other arbitrary grounds.
These include race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, age and disability.
Importantly, these protections extend beyond unfair dismissal. They also apply to employment practices such as remuneration, training, promotions, recruitment and other workplace opportunities.
Is discrimination ever legal?
Not all differentiation in the workplace constitutes unfair discrimination. The EEA recognises two circumstances in which certain forms of preferential treatment or differentiation may be legally justified.
Affirmative action
Employers may implement affirmative action measures consistent with the EEA to advance designated groups, including black people, women and people with disabilities.
These measures are intended to address historical inequalities and promote equitable representation in the workplace.
Inherent job requirements
Differentiation may also be justified when a particular characteristic is an inherent requirement of a job.
For example, a production company casting an actor to portray Nelson Mandela may have a legitimate reason to require an actor who meets the role’s specific characteristics.
However, employers must be able to demonstrate that the requirement is genuinely necessary for the position rather than a pretext for unfair discrimination.
How to challenge unfair discrimination
Employees who believe they have experienced unfair discrimination have legal avenues available to challenge the treatment.
Rather than resigning immediately, employees should consider documenting the incidents and following the appropriate procedures.
Lodge a formal grievance
A practical first step is to submit a written complaint through the employer’s internal grievance procedure.
The complaint should clearly describe the alleged discrimination and include relevant evidence, such as emails, messages, employment records or details of specific incidents.
Employers have legal obligations to address unfair discrimination and should take appropriate steps to investigate complaints and prevent further unfair treatment.
Understand the six-month CCMA deadline
If the matter remains unresolved, employees can refer an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Generally, an unfair discrimination dispute must be referred within six months of the alleged discriminatory act or omission.
This differs from most unfair dismissal disputes, which must generally be referred within 30 days.
Employees should be mindful of these deadlines, even when pursuing an internal grievance.
Conciliation and the Labour Court
The CCMA will initially attempt to resolve the dispute through conciliation, a process in which the parties are assisted in reaching an agreement.
If conciliation fails, the dispute may proceed to arbitration in circumstances permitted by law or be referred to the Labour Court for adjudication.
The appropriate route depends on factors including the nature of the complaint, the employee’s earnings and whether the parties agree to arbitration.
Where unfair discrimination is established, the Labour Court may award compensation or damages and order an employer to take steps to prevent further discrimination.
Know your rights and take action
Challenging workplace discrimination can be daunting, particularly when employees face large organisations with substantial financial and legal resources.
However, employees do not have to navigate these challenges without support. Legal advice and assistance from organisations such as Legal Leaders can help employees understand their rights and the options available to them.
Employees who believe they are being treated unfairly should keep detailed records, familiarise themselves with their employer’s grievance procedures and seek appropriate legal guidance.
No employee should have to sacrifice their dignity to earn a living. Understanding workplace rights is an important first step towards challenging discrimination and holding employers accountable.
** Aslam Moolla is the founder and director of Legal Leaders and co-founder of Legal Leaders Insurance. He is a passionate labour lawyer with over 14 years of experience. Moolla and the Legal Leaders have become a prominent voice for workplace fairness and a commitment to ensuring every South African knows their rights and how to defend them.
