The Law
Under section 9 of the Constitution, we are all guaranteed equality before the law and freedom from unfair discrimination. In addition to our constitutional right to be treated equally and not to be unfairly discriminated against, section 6 (1) of the Employment Equity Act 55 of 1998 states that:
No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnical social origin, colour, sexual orientation, age, disability, religion, HIV status, conscious, belief, political opinion, culture, language, birth or on any other arbitrary ground.
From this we can deduce that there are two types of discrimination: fair discrimination and unfair discrimination. The law explains that discrimination on the basis of affirmative action, on the inherent requirements of a particular job and discrimination based on productivity, are all cases of fair discrimination. You may have been discriminated against in these situations, however, the discrimination would be found to constitute fair discrimination as it would be reasonable and legal. For example, it would be fair, reasonable and legal to deny someone a job as an attorney if they did not have a law degree as that is an inherent requirement of the job. It would also be fair to choose a black candidate over a white candidate for a job if the company still had to meet their BEE requirements.
What we can further deduce from the law is that these types of discrimination can apply directly or indirectly. Direct discrimination would be instances where someone in the workplace utters a racial slur when talking to or about you or instances where you are denied a promotion on the basis of your race, sexual orientation, gender, etc. An example of indirect discrimination, on the other hand, would be a situation where the building you worked at had no female bathrooms. This isn’t directly discriminatory as there are no signs or policies in place that say women can’t work there. However, it is implied by the fact that there aren’t any gender-neutral or female bathrooms available should a female employee require one.
What does this mean for employees who experience unfair discrimination?
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) explains that the term ‘discrimination’ includes: “any act or omission which directly or indirectly imposes burdens, obligations or disadvantage on- or which withholds benefits, opportunities or advantages from- any person on one or more of the prohibited grounds”.
This means that if someone in the workplace acts (or fails to act) in a way that results in you losing an opportunity or that imposes any kind of burden or obligation on you on the basis of your skin colour, gender, sexual orientation, etc… then you can hold them accountable for that behaviour.
How do I do this?
The process is fairly simple. If you feel that you have been unfairly discriminated against then you should first raise the issue with your employer. If that doesn’t work or if the discrimination is coming from the employer, then your next step is to refer the dispute to the CCMA in writing. It is, however, of utmost importance that you do so within six months after the incident of alleged discrimination. The CCMA will require you to fill out a CCMA referral form (LRA Form 7.11) which can be found on the CCMA website or at any of the CCMA or DOL offices. Your next step is to notify the other party that you have instituted proceedings by providing them with a copy of the form. Make sure you do so in a way that yields a receipt as you must have proof that they received it. The CCMA will then notify both parties as to when the first hearing will take place. The first hearing is where both sides will have a chance to tell their side of the story and the CCMA commissioner will attempt to reach an agreement that satisfies both parties. No legal representation is allowed at the Preliminary hearing. If the CCMA is unable to resolve the dispute, the issue will then be referred to the CCMA arbitration (if both parties are willing) or alternatively the case will go to the Labour Court.
If your case is referred to an arbitration hearing then you will have to complete another form (LRA Form 7.13), provide a copy to the other party and submit it to the CCMA. At arbitration, you are allowed legal representation and may produce evidence and witnesses to help support your case. The Commissioner will then rule within 14 days and his/her decision will be binding on both parties.