Summary

The submission explores the relationship between this Bill, the Constitution and the Labour Relations Act of 1995 and the proposed equality legislation that is currently being drafted by the Human Rights Commission and the Department of Justice. The equality legislation is constitutionally mandated. It will prohibit unfair discrimination in various sectors, e.g. accommodation and goods and services. We hope that the equality legislation will go further than just prohibiting discrimination and will place obligations on the public and private sector to ensure that inequality in our society is eradicated.

We suggest that the relationship between the unfair discrimination section in the Bill(Chapter II) and the proposed equality legislation needs to be carefully considered. In our submission, we propose:

1. certain amendments to the anti discrimination section of the Bill,
2. that detailed provisions concerning discrimination in the employment sector should be included in the equality legislation, and
3. when these are enacted, the provisions in the Employment Equity Act should be amended accordingly.

Draft formulations of the various proposed amendments are annexed to the submission.

The constitutional equality guarantee

The submission includes an analysis of the constitutional equality provision and judgments concerning equality. It concludes that the constitutional equality guarantee is meant in its fullest and most substantive sense, to provide people with real equality in their lives. It provides for equality of outcomes, not just equality of opportunity. In order to achieve equality of outcomes, we have to recognise the systemic inequality in our society. It is often necessary to treat different groups differently, in order to accommodate their needs and disadvantaged socio-economic status. The general approach of the Bill is one that recognises substantive equality but there are areas in the Bill where this needs to be taken further.

The submission explores why it is necessary to legislate anti-discrimination provisions if we have a constitutional substantive equality guarantee. It highlights the limitations of constitutional court cases, particularly for poor people who suffer disadvantage. These cases are costly and time consuming, courts are inaccessible forums for the most disadvantaged groups in our society and the remedies that a court may provide do not necessarily improve the life of an individual litigant. For example, the Constitutional Court is unlikely to order the reinstatement of an individual. Therefore we argue that it is important to provide simple and effective procedures in discrimination cases, and that legislation is necessary to define the specific rights that employees have in the employment context.

Definitions of Discrimination

The Bill does not define discrimination in any detail, it merely states that both direct and indirect discrimination are prohibited. A person unfairly discriminates directly against an employee if they treat him/her less favourably on the basis of one or more of the prohibited grounds, e.g. they discriminate against a woman if they treat her less favourably on the ground of her sex than they treat or would treat a man. In the employment context, an employee suffers indirect discrimination if an employment policy or practice, while neutral on its face, has a disproportionate, adverse impact on employees who belong to a group of persons who are identified by a prohibited ground of discrimination.

It is generally accepted that plaintiffs bringing discrimination cases encounter difficulties of proof. In alleging indirect discrimination, there are numerous difficulties in identifying the comparator, gathering research material and statistics. In South Africa, limited current research exists about women or men in a particular industry or employment sector. This research is difficult and expensive to conduct. Most women and other members of disadvantaged groups will not be able to afford to conduct research to produce sufficient proof and will therefore fail to discharge the onus in claims concerning indirect discrimination. People who belong to more than one group of persons identified by a prohibited ground of discrimination e.g. black disabled women have even greater difficulty identifying a comparator and proving their case.

Because of the difficulties that women and other people from disadvantaged groups face, it has been suggested that the onus to prove indirect discrimination should be similar to that in the Australian Sex Discrimination Act so that people who have suffered discrimination are able to discharge the onus without conducting expensive statistical research.

If the prohibition on unfair discrimination is to be meaningful for disadvantaged groups, the problems of proof need to be addressed. We propose that a formulation be included which includes a reasonable onus in indirect discrimination cases.

We propose that indirect discrimination should be defined in the Act in Section 6(2) as follows:

For the purposes of this Act, a person(the `discriminator') discriminates unfairly against an employee(the `aggrieved person') on one or more of the prohibited grounds if the discriminator imposes or proposes to impose an employment policy or practice that has, or is likely to have, the effect of disadvantaging a group of persons who are identified by a prohibited ground of discrimination in terms of subsection 1 and of whom the aggrieved person is a member.

Reasonable Accommodation

The submission argues that another critical measure to advance substantive equality in the Bill, is the inclusion of mandatory positive measures as an aspect of the prohibition against unfair discrimination. Positive measures such as adjustments or modifications to the work environment, reassignment of duties etc. may be required in order to withstand an unfair discrimination challenge. In Canada, these measures are usually described as the duty of reasonable accommodation. An example of reasonable accommodation in the sphere of pregnancy includes adapting work and break schedules to accommodate the special needs of pregnant employees. Reasonable accommodation is usually incorporated in the form of a requirement which employers must comply with in order to defend themselves successfully against a discrimination challenge.

Reasonable accommodation is defined in the Bill to mean " any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment."

In its present form, the Bill only includes reasonable accommodation in relation to Chapter III, dealing with Employment Equity Plans. The submission argues that it is important that reasonable accommodation is also included in the section dealing with the prohibition on discrimination.

An appropriate model of a reasonable accommodation requirement is that which expressly defines discrimination to include a failure to make reasonable accommodation. An example is provided in the Manitoba Human Rights Code.

It is suggested that the following sections are included in the Bill:

Definition:

"reasonable accommodation" when referred to in chapter III means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. When referred to in chapter II, it means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable any person from a group of persons who are identified by a prohibited ground of discrimination in section 6(1) to have access to or participate or advance in employment.

6 Prohibition on discrimination

s 6 (3) Unfair discrimination includes:

(a) the failure to make reasonable accommodation. It is also necessary to define the standard of reasonable accommodation applied to employers in the Bill. The Ontario Human Rights Code sets out a mechanism for adjudicating bodies to determine this.

We propose that a similar provision should be included in the Bill setting out the required standard:

s 6 (3) (a)(I)) There may be no finding that an employer has failed to make reasonable accommodation unless the adjudicating body is satisfied that the needs of the groups of which the person is a member cannot be accommodated without undue hardship on the employer responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements and any other relevant factor.

It is also suggested that the Commission for Employment Equity should issue a code of good practice or regulations including guidelines which list more detailed factors relevant to the determination of `undue hardship'. The results of `balancing these factors against the rights of the employee to be free from discrimination will necessarily vary from case to case.'

Inherent requirements of the job

The Bill states that "it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of a job." Inherent requirements may be raised by an employer as a defense to an unfair discrimination challenge on any one of the prohibited grounds.

The submission questions whether all the listed grounds of discrimination can give rise to a defense of inherent requirements, particularly race. In many, countries such as the United States race is excluded from this defense. Does one, for example, require race for reasons of dramatic authenticity? This aspect requires careful consideration.

The submission points out the difficulties of the present formulation and suggests that the section should include a reference to a particular job, as this defense can only be raised in regard to a particular job in terms of the LRA and the ILO definition. It proposes the section should read:

"it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of a particular job." In addition the submission identifies the particular problems that women suffer when this defense is interpreted too broadly. Although anti-discrimination provisions are aimed at prohibiting the disadvantage caused to women (and men) by sexual stereotyping, the `inherent requirement' defense may well be used to persist in disadvantaging women because of stereotypes.

This defense can undermine the purpose of anti-discrimination legislation. This is not likely to happen where the only defense allowed is based on biological sexual characteristics as a necessary employment qualification. Permitting the defense in any circumstances where it is based on socialized differences between men and women may result in perpetuating stereotypes."

It is suggested that because most cases will be dealt with by the CCMA and not the Labour Court, that it is important to set out the limits of this defense in the Bill. We identify the areas where such a defense may be appropriate to sex discrimination

There are certain jobs which are required to be performed by a man or a woman purely for biological reasons. Examples include a strip tease artist, a wet nurse, sperm donor, model and an escort. Typically the defense based on biology does not include attributes of strength or stamina. Another common defense is in relation to dramatic performances or other entertainment for reasons of authenticity. There is a further defense based on notions of privacy or decency.

It is suggested that the draft clauses prepared by the UCT Caucus on Law and Gender be considered. It provides a very narrow, clear list of inherent requirements with an exemption clause as follows:

"Sex may, but will not necessarily be, an inherent requirement of a particular job when:

(a) the duties of the position involve performing in a dramatic performances or other entertainment in a role that, for reasons of authenticity, is required to be performed by a person of the relevant sex;

(b) the primary duties of the person need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothes for persons of that sex;

(c) the primary duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex ;or

(d) the occupant of the position is required to enter a toilet ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex.

An employer may approach the Commission for Employment Equity for a declaration that sex is an inherent requirement of a particular job which is not covered by one of the above grounds.

Harassment and Sexual Harassment

The submission highlights the concern that cases involving harassment(including sexual harassment) will be dealt with under the LRA, and that the Code dealing with sexual harassment will be appended to the LRA.

There is a concern that some victims of sexual harassment will be left without a remedy, Currently, sexual harassment claims generally can be brought in terms of the residual unfair labour practice jurisdiction of the LRA. Sexual harassment claims that result in an unfair dismissal can be brought under the chapter of the LRA dealing with automatically unfair dismissals. However, the unfair labour practice jurisdiction will be repealed by the Bill. The Code on Sexual Harassment will be appended to the LRA. The Code however is a guide for employers. Employers are not obliged to implement the Code. The Code provides for a dispute resolution mechanism to the CCMA and the Labour Court, however this is not legally enforceable as a Code is only of persuasive value. In practice, this appears to mean that claimants bringing sexual harassment claims that do not involve an unfair dismissal do not have a remedy.

In order to deal effectively with sexual harassment, multi-pronged legal strategies are required. It is important to provide strong individualised remedies for individuals who are subjected to sexual harassment coupled with measures in the workplace to prevent sexual harassment. It is not readily apparent why the Bill proposes that sexual harassment be dealt with in terms of the LRA and the Code to be appended to the LRA. The initial draft of the Bill provided for the Code to be appended to the Bill.

The structure of this Bill allows for a complementary, two pronged approach to sexual harassment. A strong individualised remedy could be provided for in the Chapter on Unfair Discrimination and the guidelines developed in the Code could be built into the other chapters in the Bill as measures which employers must take to ensure equity in the workplace.

To place the remedies for harassment under the LRA detracts from an understanding of sexual harassment as a form of unfair discrimination.

We propose that section 10(2) of the Bill should be amended by deleting "other than an allegation of harassment" and that section 10(3) should be deleted in its entirety.

Equal pay

The submission highlights that failure to pay equal remuneration for work of equal value is a form of discrimination. It is appropriate that a provision to this effect should be linked to the general prohibition on discrimination. The inclusion of an equal pay provision in Chapter II will allow courts to consider the body of precedent in other countries dealing with equal pay as an instance of discrimination.

The submission highlights the problem of enforcing pay equity not only in relation to the situation where a woman performs the same work as a man, but is paid less but also discrimination which typically operates at a less obvious, less pervasive level-especially in the context of job evaluation. Certain jobs(such as nursing, secretarial work, child care work, domestic work, etc) or certain types of skills(such as communication skills, empathetic skills, domestic skills) as `feminine' or 'women's work'. These are dominated by women workers and underpaid in comparison to similar occupations that require similar skills.

It is therefore important for the bill to guarantee equal remuneration for work of equal value. It is also important for the Bill, codes of good practice or regulations to lay down guidelines to assist the court in determining what constitutes work of equal value.

The present provision in the Bill states that employers must address wage disparities through collective bargaining. However, "collective bargaining arrangements may reflect and perpetuate gender inequality and agreements which are collectively reached may disadvantage women.'

We propose that a clause is included which states:

(4) Unfair discrimination includes a failure to pay equal remuneration for work of equal value.

Assessment of Compliance

Section 41 sets out the factors which the Director General or any person or body applying the Act must take into account in determining whether a designated employer is implementing employment equity. This includes "the demographic profile of the national and regional economically active population"

Limiting the demographic profile to the economically active sector is problematic. Many women work in the informal sector and are often disproportionately under-represented in employment statistics. By applying this qualifier, we risk that the status quo in regard to employment patterns will be entrenched. We suggest that " economically active" is deleted in this section.

Definitions

We have proposed above that the definition section should be amended to include a definition of reasonable accommodation. In addition we propose that the definition of pregnancy should be amended. In other jurisdictions, pregnancy has been defined to include potential pregnancy, which recognises the stereotyping that women experience as a result of their reproductive capacity.

We propose that a definition of pregnancy in included as follows:

Pregnancy includes any circumstance related to pregnancy, the termination of a pregnancy (including but not limited to birth, miscarriage or still birth), or potential pregnancy which includes a reference to:

(a) the fact that the woman is or may be capable of bearing children; or (b) the fact that the woman has expressed a desire to become pregnant; or (c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.

The definition of family responsibility does not include same sex partnerships. We support the inclusion of same sex partners and the definition of partner as proposed by the Employment Equity Alliance:

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support."

"partner" means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.

In addition, we propose that immediate family and children should be defined to include a notion of the extended family.

"dependant children" means any children who are wholly or substantially dependant on the employee