HELP! – I’M EXPERIENCING DISCRIMINATION

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discriminationGiven our history, the word ‘discrimination’ features highly in the vocabulary of many South Africans. While some have experienced it more than others, the reality is that despite our progressive constitution, discrimination still manages to rear its ugly head from time to time, especially in the workplace.

WHAT EXACTLY IS DISCRIMINATION?

Discrimination is the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, sex, gender, age, sexual orientation, family responsibility, pregnancy, marital status, HIV status, disability, religion, ethnicity, conscience, social origin, culture, belief, political opinion, birth, or language.  So, should you apply for a position, or apply for a loan, etc, you may not be excluded due to any of the above.

It is thus unfair if anyone prejudges and excludes you based on THEIR belief system.  “Unfairness” occurs when an employer’s conduct infringes the employee’s entrenched rights, is one-sided, unnecessary and/or inappropriate under the circumstances.

Here are some practical examples of unfair discrimination in the workplace:
  • An employee is unnecessarily side-lined because he/she is disabled.
  • An employee is sexually harassed, this is a form of unfair discrimination based on sex.
  • If a worker is paid less than his/her colleagues because he is male or she is female, this would constitute prohibited gender discrimination.
  • If a job applicant is unsuccessful because he/she is black/white this could be found to be unfair on the grounds of race.
  • Retrenching employees based on race.
  • Unequal pay for equally qualified employees who perform the same duties in the same position.
  • Not giving benefits or compensation for employees while others in similar positions at the same company receive them.
  • Refusing usage of public restrooms for certain employees based on their colour.
  • Discriminating against an employee by refusing promotion since she is pregnant.
  • Drug testing only selected employees based on profiling.
  • Paying female employees less because of their gender.

However, are all forms of discrimination always unfair?

CAN DISCRIMINATION EVER BE FAIR?

As hard as this is to believe, the answer is, “Yes”. Not all discrimination is by default unfair.  The law allows for fair discrimination in the following cases:

  • Discrimination based on affirmative action. If the intention is to redress the inequalities of the past by favouring designated groups, then it is not considered unfair discrimination.
  • Discrimination based on the inherent requirement of a job. An inherent requirement of a job depends on the nature of the job and required qualifications. If such requirements can be shown, discrimination will be fair, for example a person with extremely poor eyesight cannot be employed as an airline pilot.  A person who cannot do maths cannot demand to become a rocket scientist.  The onus is on the employer to have properly written and have valid job requirements in place, and this must be made available for all to see before they apply for a job.  Beware of those unscrupulous employers who ‘tailor’ a job requirement to enable them to exclude certain people.  ‘Let’s add this higher qualification, then Piet and Koos cannot apply’.
  • Compulsory discrimination by law. Employers may not employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after giving birth.
  • Discrimination based on productivity. An employer may discriminate based on productivity when giving an increase, for example increases based on merit. This, of course, would be dependent on the fairness of the criteria utilised for assessing performance and productivity.

So, now we know the difference between unfair and fair discrimination. Let us consider the following scenarios, as a test of our newfound knowledge.

SCENARIOS

Vusi is a keen golfer. He is a recent graduate, who has a good job that allowed him to move into the leafy suburbs.  He can finally realise his dream of joining the posh golf club in his area.  His application is declined due to ‘the club having reached its optimum number of members’.   What do you think?

Bernard works in the maintenance department as a handyman. He has a grade 10 school qualification, but no formal technical training.  However, he has worked as a handyman for 20 years gaining experience ‘on the job’.  He wants to apply for the maintenance foreman post, but the job requirement is Grade 12 and an applicable technical qualification.  Although he does not qualify, the Union shouts discrimination and claims his experience should make him eligible for the post. What is your opinion?

Maria wants to become an air hostess, but she is quite obese. She has tried to lose weight, but to no avail.  Apart from her weight, she meets all the criteria for the job.  The airline specifies a weight criterion due to safety considerations.  Can the airline exclude her?

Lindiwe started working as a sales representative at a company.  She is quite successful and exceeds are her sales targets. She falls pregnant unexpectedly, and due to complications, she is booked of quite regularly.  Her absence is felt, and revenue is decreasing, due to the sales force being one person short. What can the company do?  What are Lindiwe’s rights?

Have fun arguing the above scenarios with your friends…

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