Discrimination is to show favour, prejudice or bias for or againsta person on any arbitrary grounds, for example on the basis of 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 by an employer.
There are two kinds of discrimination—
- Fair discrimination; and
- Unfair discrimination
The law sets out four grounds on which discrimination is generally allowed—
- Discrimination based on affirmative action;
- Discrimination based on inherent requirements of a particular job;
- Compulsory discrimination by law; and
- Discrimination based on productivity.
Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups — blacks, women and disabled persons). Affirmative action aims to achieve equality at work without lowering standards and without unduly limiting the prospects of existing employees, for example by getting rid of discrimination in company polices, procedures and practices. Its main aim is generally to ensure that that the previously disadvantaged groups are fairly represented in the workforce of a particular employer.
Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required qualifications. If such requirements can be shown, discrimination will be fair, for example a person with extremely poor eyesight cannot be employed as an airline pilot.
The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after giving birth.
It is also fair by law for the employer to discriminate on the basis of productivity when giving an increase, for example increases based on merit. This, of course, would be dependent on the fairness of the criteria utilised for assessing performance and productivity.
Any employer’s policy or practice showing favour, prejudice or bias against employees in terms of the abovementioned grounds and which is not fair can be deemed to be unfair discrimination. There are two forms of discrimination related to ‘unfair discrimination’, namely—
- Direct discrimination; and
- Indirect discrimination
Direct discrimination is easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds. For example an employer follows