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Discrimination in the workplace is a term that is often used quite loosely. An employee receives a smaller increase than a colleague, is overlooked for a promotion, is subject to a requirement that another employee is not, or discovers that someone doing similar work earns more, and the immediate conclusion is often that there has been discrimination. However, not every difference in treatment between employees constitutes discrimination.

South African employment law does not require employers to treat every employee exactly the same. Differences in treatment are a normal part of the employment relationship. Employees may have different qualifications, experience, responsibilities, performance levels, or lengths of service, which may justify different treatment in terms of issues such as salaries, leave entitlements, and benefits. There may also be perfectly legitimate operational reasons why an employer treats employees differently.

It is important to distinguish between differentiation, discrimination, and unfair discrimination.

Identifying the Ground of Discrimination

Section 6 of the Employment Equity Act 55 of 1998 (EEA) prohibits an employer from unfairly discriminating against an employee in any employment policy or practice on various grounds. These grounds include 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. The section also recognises discrimination on an arbitrary ground.

In practice, the starting point should be to establish whether there is actually a difference in treatment and, if so, what the reason for that difference is.

Take remuneration as an example. Two employees performing similar work may earn different salaries. The existence of the salary difference does not, on its own, establish unfair discrimination. One employee may have considerably more experience, or may have been employed at a different time or under different market conditions.

The position changes if the difference is because of a prohibited ground. If, for example, employees performing work of equal value are paid differently because of race or gender, the employer may well be faced with a claim of unfair discrimination.

This is where the distinction becomes important. Differentiation is simply different treatment between employees and is not, in itself, unlawful. It amounts to discrimination when the difference is based on one of the grounds listed in Section 6 of the EEA, or on an arbitrary ground that is comparable to them. Once discrimination is established, the question becomes whether it is fair, which depends on whether the employer can justify it.

Where an employee relies on one of the grounds specifically listed in the EEA, the ground of discrimination is usually relatively easy to identify. The position becomes more complicated where an employee relies on an unlisted or arbitrary ground.

The Constitutional Court’s decision in Harksen v Lane NO remains important in this regard. The nature of the characteristic relied upon, and whether it has the potential to impair a person’s fundamental dignity or affect them in a comparably serious way, forms an important part of the enquiry.

The Labour Court in Ntai and Others v South African Breweries Limited similarly made it clear that it is not enough simply to describe an employer’s conduct as arbitrary. The employee must identify the ground on which the alleged discrimination is based.

This is often overlooked in practice. An employment decision can be unfair, inconsistent, or even irrational without necessarily constituting unfair discrimination under the EEA.

The Burden of Proof

 The question of evidence can become particularly important once a discrimination dispute is referred.

Where an employee alleges discrimination on one of the grounds specifically listed in Section 6(1) of the EEA, Section 11 provides that the employer must prove that the discrimination did not take place as alleged, or that the conduct was rational and not unfair, or was otherwise justifiable.

This does not mean that simply making an allegation is enough to shift the burden to the employer. There still needs to be a proper factual basis for the complaint.

The Labour Appeal Court’s judgment in Kroukam v SA Airlink (Pty) Ltd is useful in understanding this. The employee must place sufficient evidence before the court to raise a credible possibility that discrimination has occurred. Once that has been established, the employer has to answer the allegation with evidence of its own.

The position is more difficult for an employee relying on an unlisted or arbitrary ground. In those circumstances, the employee bears the burden of establishing the ground relied upon and showing that the conduct complained of amounts to unfair discrimination.

From an employer’s perspective, this highlights the importance of being able to explain employment decisions properly. It is not particularly helpful to discover during litigation that there may have been a perfectly legitimate reason for treating two employees differently, but that the employer cannot produce the documents or evidence necessary to prove it.

When Discrimination May Be Justified

 In certain circumstances, discrimination may be fair. The EEA itself recognises situations in which differentiation will not amount to unfair discrimination. One of the most important defences is based on an inherent requirement of the job. This qualification should, however, be approached carefully. An employer cannot avoid a discrimination claim simply by including a condition in a job description and calling it inherent.

The Labour Appeal Court in TDF Network Africa (Pty) Ltd v Faris dealt with this issue and confirmed the need for a genuine connection between the condition and the work that the employee is required to perform. In broad terms, it must be necessary for a legitimate work-related purpose, rather than merely being something that would be preferable or convenient for the employer. The distinction between what is actually necessary and what is merely convenient frequently determines whether the defence succeeds.

The Constitutional Court’s judgment in Damons v City of Cape Town provides another useful example. The matter concerned physical requirements associated with firefighting and illustrates the circumstances in which an employer may be able to establish that a particular requirement is truly inherent to the job. The Court ruled that physical fitness is an inherent requirement of an operational firefighter position, and an employer is not required to reasonably accommodate an employee if the disability permanently prevents them from fulfilling those core operational competencies. The majority held that reasonable accommodation only applies if it enables an employee to perform the essential functions of the job; it cannot be used to waive core operational or physical competencies.

Employers should be careful not to work backwards from a decision that has already been made. If a particular condition excludes or disadvantages an employee on a prohibited ground, the employer should be able to explain why it is objectively necessary for the position.

The Importance of Reasonable Accommodation

 The duty to accommodate employees frequently arises alongside discrimination, particularly in matters involving disability and religious practices.

In essence, it requires an employer to consider whether adjustments can practicably be made to enable an employee to participate in or continue in employment without suffering unnecessary disadvantage. However, this does not mean that an employer must agree to every adjustment requested by an employee. It simply means that the request should be properly considered.

Depending on the circumstances, this may involve adjustments to working arrangements, equipment, methods of performing certain duties, or the redistribution of duties that are not essential to the position. What is reasonable will depend on the workplace, the employee’s circumstances, the nature of the job, and the impact that the proposed accommodation would have on the employer.

There is also a limit. An employer is not ordinarily obliged to remove an inherent requirement of a position or to accept an arrangement that creates unjustifiable hardship.

Again, the important point is that the enquiry should be genuine. An employer that simply says “this is how we have always done it” without properly considering whether an employee can reasonably be accommodated is likely to find itself in a more difficult position when called upon to justify the decision.

Why Intention Is Not Enough

 A common mistake that employers make when responding to discrimination complaints is to focus exclusively on intention.

An employer may respond that there was never an intention to discriminate against anyone. While intention may form part of the surrounding circumstances, the enquiry does not end there. A seemingly neutral rule or practice may operate in a way that places employees with a particular characteristic at a disadvantage. The impact of the conduct is also relevant.

The principles in Harksen v Lane NO are useful here. In considering unfairness, regard must be had to matters such as the position of the complainant, the nature and purpose of the measure, the extent of the disadvantage suffered, and the effect on the person’s dignity.

A policy may make perfect sense on paper and still have consequences that the employer did not anticipate.

Responding to a Discrimination Complaint

The fact that one employee has been treated differently from another should not immediately lead to the conclusion that unfair discrimination has taken place. Equally, employers should not dismiss a complaint simply because there appears to be a business reason for the decision. The better approach is to look at what actually happened. Why were the employees treated differently? Is the difference linked, directly or indirectly, to a prohibited ground? Is there an objective reason for it? If there is a potentially discriminatory effect, can the requirement genuinely be justified? Where appropriate, was reasonable accommodation properly considered?

These questions are particularly important when employers make decisions concerning remuneration, recruitment, promotion, benefits, working arrangements, incapacity, and workplace requirements.

Ultimately, employers are allowed to differentiate between employees. What they need to be able to do is explain and justify the reason for doing so. That is often where the real difference between lawful differentiation and unfair discrimination lies.

Written by Cilliers Neethling