Business must seek ways to combat unfair discrimination
A banner headline, “Labour Department Mistreated Coloureds”, speaks for itself.
In this particular instance, the South African Human Rights Commission found that there was discrimination against coloured applicants at the Department of Labour offices in Mitchells Plain.
Commissioner Chris Nissen called for a deeper investigation to show the large scale of unfair treatment of coloured people.
Our law, and in particular the Employment Equity Act, was enacted to correct the imbalance in South Africa’s workforce.
Employers are forced to remove barriers for the advancement of individuals who were previously disadvantaged. The categories such as blacks, coloureds, Indians, women and the disabled are all favoured by the legislation and quite rightly so.
Our courts have strongly approved affirmative action and have imposed duties on all employers to tackle unfair discrimination.
Over and above this, there is a structure for employers to adopt programmes to ensure the workforce becomes reflective of the demographics.
There is a positive obligation on all employers to promote equal opportunity and certainly no employees can be unfairly treated, either directly or indirectly. All discriminatory practices have to be tackled and removed.
Anyone who is denied privileges or rights has the force of law behind them.
Many employees can prove that others in comparable circumstances get better benefits than they do and that they are victims of discrimination.
In certain circumstances, employees are discriminated against on “arbitrary grounds” and they would have to come to the Labour Court to show that they deserve the protection of the legislation.
Even harassment is a practice that must be condemned.
Applicants for employment are entitled to rights and certainly are treated on the same basis as employees are treated, with regard to the anti- discrimination provisions.
Obviously, any employment practice which discriminates against race, gender, sex, pregnancy, marital status, family responsibility, ethnic and or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or proven arbitrary ground would be unfair.
Even if the discrimination is unintentional but exists, then the employee may challenge the employer.
There have been numerous cases on age discrimination, and even if this discrimination is written into contracts or agreements, it can be challenged.
Likewise, disability is being very carefully assessed by our courts.
Many employers are unfairly reluctant to accommodate different types of disabilities and are thereby breaking the law. Disabilities have to be accommodated if there can be reasonable accommodation.
To reflect the demographics of the province and the country, employers have put plans in place to ensure that they fairly recruit individuals from the previously disadvantaged categories.
However, it must be noted that it is illegal and immoral to dismiss or retrench in order to reflect the demographics.
Also, a system whereby unqualified individuals are placed in positions in order to reflect the demographics would be discriminatory against other applicants who are qualified.
If the employer does not have an equity plan but chooses to appoint or promote the lesser qualified individual, they might face a claim of discrimination.
There are often complaints that some groups of previously disadvantaged employees are discriminated against in favour of other groups of disadvantaged employees.
There have been many cases within government services where these disputes have come to our courts.
Our labour courts have carefully assessed equity plans and the claims of national versus regional demographics.
In a specific case against the SAPS it was found that female, Indian and coloured employees were discriminated against in favour of black female employees.
On occasion, unsuccessful candidates might complain that the position was given to a white employee unfairly. This does not mean there has been discrimination - if the employer can show that the successful incumbent was better qualified.
Our law does include the concept of fair discrimination, and it would be necessary for the employer to show that the discrimination was fair in terms of employment equity and a necessity to fulfil the employment equity plan.
If the discrimination can be shown to be fair and reasonable in those circumstances, the court will not interfere. In certain cases the more qualified individual might not get the position because he or she is white. This cannot be challenged if in fact the appointed incumbent is suitably qualified to do the job and belongs to one of the designated groups.
Many individuals do argue that it is extremely unfair to introduce social engineering of the above-mentioned nature and this should be challenged. There have been challenges right up to the Constitutional Court, and our Constitutional Court has declared the Employment Equity Legislation to be in line with our Constitution.
Clearly, individuals who are appointed to specific positions must fulfil the inherent requirements of the job.
If any individual is appointed purely because of employment equity and does not fulfil the inherent requirements of the job, any other applicants could claim that they have been unfairly treated.
In an incredibly interesting court case, the Labour Court ruled that a blanket ban on the employment of diabetics as firefighters was unfair. The court said the ban was not justified and the municipality was ordered to employ the applicant as a firefighter.
Clearly, our courts have a careful look at the inherent requirements of the job.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media