Unfair Discrimination

Unfair discrimination in the workplace

Unfair discrimination is when a person is treated differently to others because they belong to a certain category (such as race or gender).  This could be through showing favour to certain employees, or through prejudice and bias against others.

If there are burdens placed on a person in the workplace (for example, through harassment) or benefits are withheld, it is considered unfair.

Based on the Employment Equity Act, nobody may discriminate against employees because of any of the following protected characteristics:

  • 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; or
  • birth.

Employers may not discriminate against any member of staff because of these characteristics; including salary, working hours, benefits, promotions, training and other job perks.

The following are examples of unfair discrimination:

  1. After receiving a job offer, a woman mentions she is 20 weeks pregnant and the offer is immediately withdrawn because of this fact.
  2. An employee is sexually harassed or bullied at an office party because she is the only woman present.
  3. A worker is paid less than his/her colleagues based on their gender or race.
  4. Homosexual partners are not invited to events, but heterosexual partners are.
  5. A man of a particular race is required to check in with his supervisor each morning, but other employees aren’t.
  6. Name calling based on race, gender or sexual orientation. For example, “moffie” or “coconut.”

In some cases, however, discrimination is considered fair.  One is when affirmative action is applied and certain groups of people are advanced in the workplace because they were previously disadvantaged or discriminated against.  Another is when the requirements of a job prohibit certain people automatically, for example, excluding blind workers from operating machinery.  Also, giving certain benefits to managers or senior staff that other employees do not receive (such as a company car) is not considered unfair.

It is important that employers remove any discriminatory clauses from their employment contracts, and that all complaints are treated seriously.  Even if the employer is not directly involved, harassment or misconduct from employees towards another member of staff that is deemed unfair, is legally the employer’s responsibility.  An employee who has been unfairly discriminated against can take legal action against their employer.  This needs to be done in writing to the CCMA within six months after the specific act that allegedly took place.

Any direct assault against a person’s dignity through humiliation or hostility needs to be addressed immediately by the employer to avoid paying compensation or getting involved in long legal battles.

Every person has the right to equality and fair treatment in their work environment, from the moment they apply for a position until they resign or retire.