Lecture notes Labour Law (CML4004S)

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CML4004S Labour Law

Workplace Discrimination




WORKPLACE DISCRIMINATION

1. Introduction to Workplace Discrimination
a. Equality Law and the Constitutional Context
b. Purpose and Anatomy (Structure) of the Employment Equity Act (EEA)
2. The Prohibition of Unfair Discrimination in the Workplace
a. The Prohibition in Chapter 2 of the EEA
b. Named Prohibitions
c. Listed and Arbitrary Grounds
d. Dispute Resolution Process
e. Justifications and Remedies
3. The Mechanisms of Affirmative Action in the Workplace
a. The Objective - Equitable Representation
b. Employer Obligations - Implementing Affirmative Action and Reducing
Income Differentials
c. Enforcement Mechanisms
d. Is there a right to Affirmative Action?

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 Prohibition of Unfair Discrimination and Implementing Affirmative Action.
 How can an unfair discrimination dispute arise?
 Identify where an employee may have a concurrent or alternative claim based either on
the LRA or the common law - BMW case
 Elements of an Unfair Discrimination Dispute:
 Pay attention to the evidentiary burden
 What is it that the complainant must allege?
 The requirements for a proper foundation (credible evidence) for an unfair
discrimination claim;
 Application of factual/legal causation to determine the reason for
differential treatment - Legal Aid v Jansen
 The justifications available to the employer
 What is required to rely on these justifications? - valid and lawful AA
measures
 Principle of reasonable accommodation and its application in unfair
discrimination cases (Collier 466 -467)
 Implementation of Affirmative Action
 Differentiate between the types of disputes that might arise and whether they fit
into Chapter II of the EEA, and those that are related to Chapter III and the
processes available for such disputes.
 Responsibilities of a designated employer and the consequences of non-
compliance.

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Introduction to Workplace Discrimination

Equality Law and the Constitutional Context

 Equality is important because it seeks to use law as a means of changing entrenched
behaviour, attitudes and institutions in order to secure the fundamental right to
equality.
 It is this understanding of equality law that informs the legislative framework for the
right to equality.
 Involves the construction and development of novel legal concepts and procedures.
 It is shaped by and has a vital impact on people in their everyday lives.
 One has to understand the historical and social contexts and values on which the law
is based to change it.
 Sir Bob Hepple.

Sources of Law

 Section 9 of the Constitution - to realize the rights in section 9…
 Employment Equity Act
 Applies to employment relationships and hence workplace discrimination.
 Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)
 Applies in contexts where the EEA does not apply. For example, where an
independent contractor alleges workplace discrimination.
 Recourse may also be sought in terms of the common law and the criminal law
system.
 The concept of equality is defined in PEPUDA as:
 Equality includes full and equal enjoyment of rights and freedoms
contemplated in the Constitution and include de jure and de facto equality and
equality in terms of outcomes.
 This definition confirms the commitment to substantive equality (see in
section 9(2) of the Constitution).

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