UNFAIR DISCRIMINATION
discriminationeffects

Unfair Discrimination in South African Law

It happens very often that a client calls regarding ‘unfair discrimination’ which is believed to be occurring in various instances, such as, at sports clubs, at work in the employment context or at social venues.

This article is furnished, in plain language, to make it easier for clients to better understand what discrimination is, when it is fair and unfair generally, and particularly in the areas of labour or employment law, administrative law, sports and sports law, schooling or education law.

What is Discrimination?

Essentially in general terms:

discrimination means the behaviour or practice of forming of opinions about others not based on their individual merits, but rather their membership in a group with assumed characteristics.

Discrimination (or prejudice as it is sometimes referred to) usually is motivated by the intention of one person to obtain a benefit, favour or opportunity, directly or indirectly, which is denied to another person without fair reason or at the expense of the latter.

It can also be motivated by the intention to marginalise or disenfranchise any person where the latter is thought to be or perceived to be a threat or rival to the person initiating the discrimination.

In terms of statutory law, discrimination occurs when a person engages in conduct which shows favour, prejudice or bias for or against a person on any arbitrary grounds e.g. on the basis of 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.

While anti-discrimination laws may vary between various jurisdictions in regard to purpose and content, in South African law it is important to understand that discrimination can be fair or unfair and the legal significance of the difference is immensely important.

Education as to the law of unfair discrimination is vital in this respect as is the ability to overcome ignorance, prejudice and bigotry.

In what circumstances is discrimination ‘fair’

The law sets out four grounds on which discrimination is generally permissible:

  1. Compulsory discrimination by law;
  2. Discrimination based on affirmative action;
  3. Discrimination based on inherent requirements of a particular job;
  4. Discrimination based on productivity.

In labour law, in regard to compulsory discrimination, the law does not permit an employer to employ children under the age of 15 years or any pregnant women four weeks before confinement and six weeks after giving birth.

Furthermore, in labour law, discrimination by an employer based on the inherent requirement(s) of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required job qualifications. If such requirements can be shown, discrimination will be fair, e.g. if a person with extremely poor eyesight cannot be employed as a pilot or be enlisted in the military.

It is also fair in law for the employer to discriminate on the basis of productivity (or the lack thereof) when determining salary increases, e.g. increases based on meritorious work or service, or promotions, overseas travel for work, perks and other employment enhancing opportunities or employment fulfilment. This is dependent on the fairness of the underlying criteria utilised for assessing performance, productivity and the other inherent requirements for the opportunities.

Unfair discrimination occurs when…

In South African statutory law, discrimination is prohibited not only by the Constitutional guarantee itself in terms of section 9 of the Bill of Rights, but also in terms of the Prevention of Unfair Discrimination Act 4 of 2000, as amended (the Promotion of Equality and Prevention of Unfair Discrimination Act, is it’s full title), which is basically the machinery which gives effect and substance to the Constitutional guarantee, subject, of course, to the limitation clause.

In a nutsell, the Act prohibits unfair discrimination in South Africa by the government and by private organisations and individuals.

This includes associations or entities such as universities, technikons, schools, crèches, nursery schools, sports clubs, country clubs, non-profit organisations, charitable entities, places of worship, private and public companies.

Most importantly, the discrimination law also covers:

  • the actions; or
  • inaction of such entities or associations:-
  • and includes those of it’s-
  • members,
  • elected directors or representatives,
  • committees or managers,
  • chairpersons,
  • treasurers,
  • caterers,
  • staff and the like when exercising:
    • any right,
    • entitlement,
    • function,
    • or power in terms of their office or membership.

Decisions regarding participation or team selection or members’ selection by committees of schools, sport clubs and the like, for individual-participant sports or team sports such as league teams, league participation, regional sports participation are all subject to the Act and unfair discrimination is prohibited in this regard.

In regard to ‘r and r’, in respect of the utilisation by members (or in fact visitors) of sports club facilities, venues, bars, restaurants and the like, unfair discrimination practices and conduct is prohibited. It matters not that such clubs or venues are ‘private clubs’.

Right of admission signs or notices do not per se enable circumvention of anti-discrimination laws. The Rule of law prevails.

Unfair discrimination can also occur in respect of conduct (actions or inaction) which has the effect of ignoring or marginalising or disenfranchising persons (or their views or opinions) arbitrarily, whether intentionally or not.

It can also occur in regard to the right to access information of such entities or associations or sports clubs in respect of constitutional documentation, minutes of meetings, financial information, contractual information, documentation evidencing decision-making procedures or processes, employment guidelines, employment contracts and the like.

Disabilities and/or Impairments

The Act also prohibits unfair discrimination against an individual who has a ‘disability’ if he or she has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment.

It is thus imperative to ensure that when considering legal action in regard to unfair discrimination that expert legal advice is sought to ensure that any such claims are meritorious and professionally considered in law.

ASHLEY SLAMAT ATTORNEYS – no games, JUST LAW™

The following significant cases demonstrate the extent of the vast scope of unfair or anti-discrimination litigation in South African law and the subject matter thereof

 

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright.

I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise,

nor riches to men of understanding, nor yet favour to men of skill, but time and chance happeneth to them all.

-Ecclesiates 9:11.