Part 1 dealt with fair discrimination.
This article, Part 2, deals with unfair discrimination.
What is unfair discrimination?
Any employer’s policy or practice showing favour, prejudice or bias against employees in terms of the grounds covered in Part 1 and which is not fair can be deemed to be unfair discrimination.
There are two forms of discrimination related to ‘unfair discrimination’, namely –
- Direct discrimination; and
- Indirect discrimination.
Direct discrimination is easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds. For example an employer follows a policy of remunerating a female employee on a lower scale simply because she is a woman, whereas a male employee is remunerated at a much higher scale for doing the same work. Indirect discrimination, on the other hand, is not as easily recognisable as it is a more subtle form of discrimination. It involves the application of policies and practices that are apparently neutral and do not explicitly distinguish between employees and job applicants but that, in reality, have a disproportionate and negative effect on certain individuals or groups. The laws also emphasise that—
- Sexual harassment will be prohibited;
- Medical testing will not be allowed unless it is an inherent requirement of the job;
- Psychological testing or other assessment cannot be done unless such tests are validated and will not be biased;
- In addition, HIV testing can only be carried out if authorised by the Labour Court; and all these protections also apply to applicants for employment.
Essentially one has to give consideration to the impact of actions, policies and procedures when evaluating discriminatory practices rather than the intention thereof.
What steps should an employee take when unfair discrimination takes place?
Any employee who feels that he/she has been unfairly discriminated against or that an employer has contravened the laws can lodge a grievance in writing with their employer. The matter can thereafter be referred to the CCMA within six months where the issue cannot be resolved at the workplace. If the CCMA is not able to resolve the dispute through conciliation, the matter can either be referred for arbitration (if both parties agree) or to the Labour Court for adjudication.
Part 3 will deal with identifying discrimination in the workplace.