In the workplace, discrimination is defined as showing favor or bias, toward or against, a person on arbitrary grounds. These grounds include race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, color, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, or birth. This bias can come from either an employer or another employee.

The Two Kinds of Discrimination

Broadly speaking, the law recognizes two distinct categories of discrimination:

• Fair discrimination: The specific legal grounds on which differential treatment is generally allowed.
• Unfair discrimination: An employer’s policy or practice that shows favor, prejudice, or bias against employees that does not qualify as fair discrimination.

The Four Types of Fair and Legal Discrimination

1. Discrimination Based on Affirmative Action Affirmative action measures are designed to promote employment equity and fairness in favor of designated groups, which include black employees (Africans, Coloureds, and Indians), women, and disabled persons. It aims to achieve equality at work without lowering standards or unduly limiting the prospects of existing employees. This is typically done by replacing discriminatory company policies, procedures, and practices to ensure that previously disadvantaged groups are fairly represented in the workforce.
2. Discrimination Based on the Inherent Requirements of a Job Any discrimination based on the genuine, inherent requirements of a particular job does not constitute unfair discrimination. This depends entirely on the nature of the job and the required qualifications. If these requirements are transparent, the discrimination is fair. For example, a person with extremely poor eyesight cannot legally be employed as an airline pilot.
3. Fair Compulsory Discrimination by Law The law strictly prohibits employers from employing children under the age of 15 years, or pregnant women during the period of four weeks before confinement and six weeks after giving birth.
4. Discrimination Based on Productivity By law, it is fair for an employer to discriminate on the basis of productivity when considering salary increases or promotions based on merit. However, this is strictly dependent on the fairness and objectivity of the criteria used to assess that performance and productivity.

The Two Forms of Unfair Discrimination

When evaluating discriminatory practices, the law emphasizes that one needs to look at the impact of actions, policies, and procedures, rather than the original intention behind them. Unfair discrimination generally takes two forms:

• Direct Discrimination: This is easily identifiable and involves overt, explicit differential treatment of employees and job applicants based on arbitrary grounds. For example, following a policy of paying a female employee on a lower salary scale simply because she is a woman, while a male employee receives a much higher scale for doing the exact same work.
• Indirect Discrimination: This is far more subtle and harder to recognize. It involves applying policies and practices that appear completely neutral and do not explicitly distinguish between people, but in reality, have a disproportionate and negative effect on certain individuals or groups. Formal equality falls short here; while formal equality tries to ensure equal treatment for all regardless of identity, substantive equality aims to achieve equal outcomes by intentionally treating people and groups differently when justified.

Additional Statutory Protections

The law explicitly states that:

• Sexual harassment is strictly prohibited.
• Medical testing is not allowed unless it is proven to be an inherent requirement of the job.
• Psychological testing or other assessments cannot be conducted unless the tests are validated and proven to be completely unbiased.
• HIV testing can only be carried out if specifically authorized by the Labour Court.

Note: All of these protections apply to job applicants as well as active employees.

South African Legislative Framework

Several key pieces of legislation govern equality and protect against discrimination in South Africa:

• The Constitution & The SAHRC: The South African Human Rights Commission (SAHRC) is mandated by Section 184 of the Constitution to promote respect for, development of, and attainment of human rights, while monitoring their observance across the country. Redress measures like affirmative action are natively endorsed in Section 9(2) of the Constitution.
• Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), Act No. 4 of 2000: In terms of Section 7 of this Act, any discrimination based on the prohibited ground of race is automatically considered unfair unless it is legally established to be fair.
• Employment Equity Act (EEA), Act No. 55 of 1998: Passed specifically to promote equal opportunity and fair treatment in employment by eliminating unfair discrimination.
• Broad-Based Black Economic Empowerment Act (and Amendments): These acts reflect the EEA, providing the practical legislative definitions and policies required to realize substantive equality. This includes definitions for designated groups and outlines the necessity to empower marginalized groups, including women, youth, people with disabilities, and those living in rural areas.

Current Trends

Violations of the right to equality continue to be the highest recorded grievance made to the SAHRC. For instance, in the financial year ending 31 March 2016, 16% of all complaints received alleged a violation of the right to equality. Out of 74,919 equality-related complaints recorded, two-thirds were classified specifically as race-related discrimination.

Practical Application: Understanding “Measures”

Regardless of the laws in place, systemic equality cannot be achieved by legislation alone; private individuals must work together with the state. The personal mindsets and “measures” we use to look at others determine our decisions and opinions.

Scenario 1: The Multi-Manager Interview

Four individuals apply for a single position as a welder. The job description requires heavy lifting of steel frames and warehouse supervision, including submitting daily computerized production reports.

The interviewers look at the candidates through four entirely different lenses (Measures):

• Measure A: The literal job description and technical requirements.
• Measure B: Broad-Based Black Economic Empowerment (B-BBEE) structural reasoning.
• Measure C: Gender and physical fitness.
• Measure D: Highest level of education, computer proficiency, and leadership skills.

Candidate Qualifications Data:

How They Score (Out of 10):

If the CEO instructs the hiring managers to approve any applicant that reaches an individual score of 5 in an effort to allow equal opportunity, the following happens based on which manager interviews whom:

• Applicant 1 is interviewed solely on Measure B – Score: 5 (Approved)
• Applicant 2 is interviewed solely on Measure C – Score: 5 (Approved)
• Applicant 3 is interviewed solely on Measure A – Score: 5 (Approved)
• Applicant 4 is interviewed solely on Measure D – Score: 5 (Approved)

Without investigating and understanding the underlying measures used to make decisions, arbitrary systems can mask systemic mismatches. Understanding the measures used to form an opinion about someone is the key to avoiding discrimination.

Scenarios 2 & 3: Personal Frames of Reference

On a personal level, we form opinions of others based on our own past experiences and frames of reference, which can unconsciously lead to personal discrimination and bias.

Personal measures are not static; they change when a person encounters a new experience that broadens their frame of reference. For example, if Person 3 in Scenario 3 gets a flat tire and a kind white stranger stops to assist her, her baseline opinion of white people may completely shift. Similarly, if Person 2 in Scenario 2 ends up working for an exceptional black employer who treats her with ultimate respect, her frame of reference can heal and evolve.

The purpose of the law is to make known what actions are deemed wrong, but the law on its own cannot control individual actions. Each person must take individual responsibility for choosing to treat others without discrimination, refusing to judge based on one-sided measures, and adhering to the framework of the country.

Steps to Take When Unfair Discrimination Occurs

If an employee feels they have been unfairly discriminated against or believes that an employer has contravened the law, they should follow these steps:

1. Lodge an Internal Grievance: Submit a formal grievance, in writing, usually directly to the Human Resources Manager.
2. Refer to the CCMA: If the matter is not satisfactorily resolved internally within the workplace, the employee can refer the case to the Commission for Conciliation, Mediation and Arbitration (CCMA) within six months of the incident occurring.
3. Arbitration or Labour Court Adjudication: If the CCMA is unable to resolve the dispute through initial conciliation, the matter can be escalated either for formal arbitration through the CCMA (if both parties mutually agree) or referred to the Labour Court for final adjudication.