Anti-Discrimination Laws in South Africa

1. Brief Description of Anti-Discrimination Law

The EEA sets out to achieve substantive equality by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination. It also implements affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.

2. Extent of Protection

There is a general prohibition on unfair discrimination, on one or more of the following grounds: 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, birth or any other arbitrary ground.

It is automatically unfair to dismiss an employee on prohibited discrimination grounds similar to those contained in the Constitution and the EEA.

3. Protections Against Harassment

Sexual harassment of an employee is a form of unfair discrimination and is prohibited by the EEA. A Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the ‘Code’), issued under the EEA, provides guidelines for employers, and encourages employers to adopt sexual harassment policies and to communicate those policies to all employees.

4. Employer’s Obligation to Provide Reasonable Accommodations

The EEA prohibits unfair discrimination in the workplace based on a person’s disability. The EEA also states that past disadvantages of people with disabilities need to be redressed through affirmative action measures.

Disability is defined in the EEA to mean ‘a long-term or recurring physical or mental impairment, which substantially limits their prospects of entry into, or advancement in, employment’.

Section 15 of the Constitution provides everyone with the right to freedom of conscience, religion, thought, belief and opinion. The EEA also prohibits discrimination against employees or applicants for employment on the grounds of religion. As far as possible, reasonable accommodation is required in order to respect an employee’s religion.

5. Remedies

The Labour Court may impose a fine in accordance with Schedule 1 of the EEA for any contravention of affirmative action. In unfair discrimination claims, a successful employee can obtain injunctive relief, statutory compensation or damages (although not punitive damages). Employees dismissed on grounds amounting to unfair discrimination will be awarded reinstatement if they seek it alternatively compensation up to 24 months’ remuneration.

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