EMPLOYMENT DISCRIMINATION Alec Freund

1. EMPLOYMENT DISCRIMINATION Alec Freund

2. Developments of the year: • Relationship between the obligation on employers not to unfairly discriminate on grounds of race or gender and the obligation to take affirmative action measures • What type of questions in job interviews evidence unfair discrimination? • When is the reason for a dismissal deemed to be unfairly discriminatory? • HIV/AIDS • Pregnancy • Dreadlocks • Employer liability for employee discriminatory conduct Product/Sub-brand/Capability or Solution Line

3. Affirmative action in appointment decision: Section 6(2) : “It is not unfair discrimination to take affirmative action measures consistent with the purposes of this Act” Product/Sub-brand/Capability or Solution Line

4. NEHAWU v OFFICE OF THE PREMIER, PROVINCE OF THE EASTERN CAPE • African male applied timeously • Policy to address gender imbalance • Coloured persons also under-represented • Coloured female headhunted after closing date for applications • African male rated third • Coloured female rated fourth and appointed • Unfair discrimination against African male? Product/Sub-brand/Capability or Solution Line

5. NEHAWU v OFFICE OF THE PREMIER, PROVINCE OF THE EASTERN CAPE • “Remedial measures are not necessarily beyond the bounds of scrutiny to determine… fairness” • Affirmative action policy rational and goal directed • Targeted recruitment permissible in terms of recruitment policy • No unfair discrimination Product/Sub-brand/Capability or Solution Line

6. MINISTER OF SAFETY AND SECURITY v GOVENDER • Alleged failure to adhere to employment equity plan • “Absence of conciliation” defence rejected • Claim failed on jurisdictional grounds (Dudley v City of Cape Town; Chapter V of EEA procedures) Product/Sub-brand/Capability or Solution Line

7. UNISA v REYNHARDT • Black professor appointed as Dean in preference to more highly rated White candidate • 70% blacks : 30% whites target ratio already met • Unfair discrimination against white candidate? • If so, what remedy? Product/Sub-brand/Capability or Solution Line

8. UNISA v REYNHARDT • Threefold constitutional enquiry: • Does the measure target persons or categories of persons who have been disadvantaged by unfair discrimination? • Is the measure designed to protect or advance such persons or categories of persons? • Does the measure promote the achievement of equality? Product/Sub-brand/Capability or Solution Line

9. UNISA v REYNHARDT “[t]he long-term goal of our society is a non racial, non sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens with it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.” Product/Sub-brand/Capability or Solution Line

10. UNISA v REYNHARDT • In terms of employer’s equity programme, where a unit had achieved a satisfactory demographic profile, the principle of preferential treatment in view of affirmative action considerations “shall not apply” • If racial composition fell below the targeted ratio in next appointment decision, principles of equity programme would apply • Unfair discrimination claim upheld • R661,000 compensation granted (12 months’ salary on higher scale (punitive award) plus difference in retirement benefits and interest on whole award) Product/Sub-brand/Capability or Solution Line

11. DISCRIMINATION IN THE INTERVIEW PROCESS • ALLPASS v MOOIKLOOF ESTATES: No duty to disclose HIV positive and on anti-retroviral drugs • “The questions put to the Applicant about his sexual orientation, religious affiliation and marital status constitute unfair discrimination.” • SWART v GREENMACHINE HORTICULTURAL SERVICES: No duty to disclose pregnancy Product/Sub-brand/Capability or Solution Line

12. ALLPASS v MOOIKLOOF ESTATES • Answered at interview that he was in good health • Stated after employment he was HIV positive and on anti-retroviral drugs • Confrontation • Dispute as to reason for dismissal • Dominant reason was employee’s failure to disclose his HIV status at the interview : automatically unfair dismissal Product/Sub-brand/Capability or Solution Line

13. ALLPASS v MOOIKLOOF ESTATES “The notion that HIV is synonymous with serious illness is however not unheard of. It emanates from a general stereotype about all people living with HIV, and which results in loss of dignity and a sense of self…The misconception therefore that someone with HIV is so ill that he should not be employed assails the core of that person’s dignity and results in the unfair and unconstitutional condemnation to economic death as referred to by Ngcobo J in Hoffman (supra).” Product/Sub-brand/Capability or Solution Line

14. ALLPASS v MOOIKLOOF ESTATES • Inherent job requirement defence based on penicillin allergy • “particular personal physical characteristic (for example, being male or female, speaking a particular language, or being free of a disability) which must be necessary for effectively carrying out the duties attached to a particular position”. • Defence dismissed Product/Sub-brand/Capability or Solution Line

15. ALLPASS v MOOIKLOOF ESTATES • No jurisdiction to determine unfair discrimination claim in terms of section 6(1) of the EEA based on humiliating eviction by security guard (not employed by the same employer) • Three month’s renewable contract • Twelve month’s compensation ordered plus costs Product/Sub-brand/Capability or Solution Line

16. SWART v GREENMACHINE HORTICULTURAL SERVICES • Disclosed pregnancy to fellow employee about a month after being employed • Manager initially supportive but relationship rapidly deteriorated • Dismissed on grounds of poor performance and failure to disclose pregnancy • Key issue was loss of trust arising from the non-disclosure of pregnancy : automatically unfair dismissal • No finding on dereliction of duty complaint because non-disclosure of pregnancy found to be the dominant cause of the dismissal • Twelve’s month compensation plus costs Product/Sub-brand/Capability or Solution Line

17. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU • Five male officers who refused to cut their dreadlocks dismissed for breach of dress code • Three relied on Rastafarian beliefs and two on Xhosa cultural practices • Labour Court dismissed religious and cultural discrimination claims on the basis that the employees had not brought the conflict between the instruction and their religious and cultural practices to the attention of the employer; but upheld gender discrimination claim and ordered retrospective reinstatement Product/Sub-brand/Capability or Solution Line

18. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU • LAC found that the employees had asserted their rights but found that, even if they hadn’t, failure to do so would not render discriminatory action non-discriminatory • The “reason for the dismissal” is “the objective reason in a causative sense. The Court must enquire into the objective causative factors which brought about the dismissal, and should not restrict the enquiry to a subjective reason, in the sense of an explanation from one or other of the parties.” Product/Sub-brand/Capability or Solution Line

19. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU “In other words, discrimination is not saved by the fact that a person acted from a benign motive. Usually motive and intention are irrelevant to the determination of discrimination because that is considered by asking the simple question: Would the complainant have received the same treatment from the defendant or respondent but for his gender, religion culture, etc?” Product/Sub-brand/Capability or Solution Line

20. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU • “Direct discrimination does not require that the employer intends to behave in a discriminatory manner or that it realises that it is doing so…In the present case the reason for the dismissal was that the respondents wore and refused to cut their dreadlocks. But for their gender, religion and culture, they would not have been dismissed. The evidence establishes beyond question that the reason for their dismissal was discrimination on grounds of gender, religion and culture.” • LAC found discrimination on grounds of religion, culture and gender Product/Sub-brand/Capability or Solution Line

21. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU • The real question for adjudication was whether the discrimination could be justified as fair or justifiable • The LAC was not persuaded by employer’s reliance on need to achieve uniformity and neatness, with the underlying object of enhancing discipline and security • “There must be a rational and proportional relationship between the measure and the purpose it seeks to achieve. Reasonable accommodation of diversity is an exercise in proportionality bearing upon the rationality of the means of achieving the legitimate purpose of the prohibition.” Product/Sub-brand/Capability or Solution Line

22. DEPARTMENT OF CORRECTIONAL SERVICES v POPCRU • Employers should, wherever reasonably possible, seek to avoid putting religious and cultural adherents to the burdens and choice of being true to their faith at the expense of being respectful of the management prerogative and authority • No rational connection between the ban on dreadlock hairstyle and the achievement of greater probity and security • “Floodgates” argument rejected: judgment applies only to bona fide religious and cultural practices Product/Sub-brand/Capability or Solution Line

23. EMPLOYER LIABILITY FOR DISCRIMINATORY CONDUCT OF EMPLOYEES Section 60 of the EEA: “ (1) …the alleged conduct must immediately be brought to the attention of the employer. (2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act. (3) If the employer fails to take the necessary steps referred to in sub-section (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened the provision.”

24. BIGGAR v CITY OF JOHANNESBURG • Repeated racist abuse at residential complex in a fire station under the employer’s control • Harassment of an employee is a form of unfair discrimination in terms of section 6(3) of the EEA • Harassment brought to employer’s attention • Employer had taken some steps but had not followed through • Employer liable, even though harassment did not take place when the employees were at work. For all intents and purposes employees remained at the workplace when they were off duty • Creative remedies

25. EMPLOYER LIABILITY FOR DISCRIMINATORY CONDUCT OF EMPLOYEES • MOKONE v SAHARA COMPUTERS: • High Court delictual claim against employer for sexual harassment by a manager • Employee’s manager said he could do nothing as perpetrator “well connected” and a complaint might lead to the woman’s dismissal, rather than that of the perpetrator • Incidents continued • Further complaint led to final written warning • Complainant resigned

26. MOKONE v SAHARA COMPUTERS • Employer had a legal duty to protect her against sexual harassment at the workplace (Media24 v Grobbelaar) • Manager negligently breached that duty • “…the defendant should have had management and disciplinary structures that would immediately and effectively have dealt with the plaintiff’s complaint. For instance, Stenekamp should have been obliged immediately to have referred the complaint to HR. There is no doubt that it reasonably was within the defendant’s means to create the necessary structures. In my view the defendant acted unreasonably when it failed to do so.” • Damages of R60,000 plus costs