Is discrimination unfair?

Feb 24, 2021

It can be argued that the term “discrimination” , in whatever form in the workplace, is inherently unfair. However, this argument is not correct if one considers the provisions of the Employment Equity Act (the Act).

Discrimination falls under Section 6 of the Act – Prohibition of unfair discrimination – which reads as follows:

“(1) 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, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

(2) It is not unfair discrimination to –

(a) take affirmative action measures consistent with the purpose of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.

(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1)”

Therefore, according to the Act, certain types of discrimination can in fact be fair. This means discrimination is not always unfair or differently put, not all discrimination is unfair.

For example, giving company cars to managers and not to other employees is discrimination but is not unfair discrimination because the discrimination in this case is based on legitimate business reasons and not on the employer’s personal beliefs.

To understand what the concept of “unfairness” means, employers and employees will have to develop a clear understanding of the difference between unfair and fair discrimination.

“Unfairness” occurs when an employer’s conduct disregards the employee’s entrenched rights, is one-sided, unnecessary and/or inappropriate under the circumstances.

Unfair discrimination can take many forms. For example:

  • where an employee is unnecessarily sidelined because he/she is disabled, could be unfair discrimination.
  • if an employee is sexually harassed, is a form of unfair discrimination based on sex.
  • if an employee is paid less than his/her colleagues because he is male or she is female, would constitute prohibited gender discrimination.
  • if a job applicant is unsuccessful because he/she is white, could be found to be unfair on the grounds of race.

In the case of Consolidated Billing v IMATU (1998, 8 BALR 1049), the employees were turned down for internal appointments because they did not fit the desired racial profile. Because the internal applicants had already been short-listed and were thus acknowledged to have been suitably qualified for the job, the arbitrator found that the failure to appoint the employees to be unfair racial discrimination.

As already mentioned, age can also be ground for unfair discrimination. If the employer refuses to appoint a person aged 14 years, it is discrimination based on age. However, it is not unfair discrimination because the law says that employers may not hire employees who are younger than 15 years old. Other than this, discriminating against an employee or job applicant simply because he/she is “too young” or “too old” will normally constitute unfair discrimination.

It happens too often that an employer tries to get rid of an older employee. This could be for a number of reasons, including:

  • The employer wants to employ a family member or friend and feels that the older employer has “had his chance and should make way”.
  • The older employee may have “old fashioned” ideas or finds it difficult to learn new technology.
  • The company has been taken over by young management who only want young people working in the business.
  • The older employee has become slower, which makes the employer impatient.
  • The employer dislikes the employee.

As mentioned, it is therefore important that employers and employees need to have a clear understanding of unfair and fair discrimination as it occurs many times without them being able to identify either form of discrimination and to take corrective action if it is found to be unfair.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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