Unfair Discrimination In The Workplace

While employees are quick to react strongly to revisions to appointment procedures, or promotions, or the extension of certain benefits to a select group of employees, and the question is whether or not their frustration or discouragement is justifiable?

It is important that employers understand the impact of unfair discrimination in the workplace, however, not all differentiation is discrimination.



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Then, how can you know the difference?

Neither the Employment Equity Act (EEA) nor the Constitution prohibits differentiation between employees but such differentiation may not be unfair or unjust; then it constitutes discrimination.

Section 6 of the EEA provides a non-exhaustive list of so called “common grounds” for discrimination and should an employer differentiate between employees on one or more of these grounds a basis of discrimination is established.

These grounds include race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, belief, political affiliation, culture, language and birth.


Direct vs Indirect Discrimination

Unfair discrimination can be either direct or indirect according to the EEA.

Direct Discrimination

Direct discrimination is easily identifiable. For example: when an employer differentiates between employees on the basis of race, or pays a female employee less than the male employee when they render the same service, this is direct discrimination.

Indirect discrimination

Indirect discrimination on the other hand is not so easy to identify and, for example, entails policies and procedures in the workplace which seem neutral at first but have a negative and disparate effect on certain groups of employees.

Section 5 of the Employment Equity Act

Section 5 of the EEA further more emphasizes the duty of an employer to promote equal opportunity in the workplace by abolishing unfair discrimination at all levels.

The problem is that it is not always easy to prove when indirect discrimination has affected the human dignity of the employee.

However, as the well-known case of Harksen v Lane NO 1998 (1) SA 300 (CC) serves to illustrate, it is vital that employers measure their actions carefully and ensure that none of their procedures or practices can be considered discriminatory in any way.

Essentially, once an employer has been accused of unfair discrimination, the onus shifts to the employer to prove that the differentiation between employees was fair; and Section 6(2) serves to protect the employers right to differentiate between employees or potential candidates in certain instances.

For example, Section 6(2) accounts for Affirmative Action. Section 6(2) can thus be used as a defence by the accused, in order to establish that his or her conduct was, in fact, fair.


Resolving The Problem

Any employee who feels that he or she has been unfairly discriminated against, or who feels that an employer has contravened the laws can lodge a grievance in writing with their employer.

Should the matter not be resolvable in-house, the matter can be referred to the CCMA.

If the CCMA is not able to resolve the dispute through reconciliation, the matter can either be referred for arbitration (if both parties agree) or to the Labour Court to be adjudicated.

Essentially, one has to give due consideration to the impact of actions, policies and procedures when evaluating discriminatory practices; rather than assessing or weighing the intention behind it.

Therefore employers must tread lightly, consider the relevant factors and ensure that they do not fall into the trap of discrimination, or make rash decisions based on their emotions or personal feelings.



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