This article was written by Yusuf Peer, an Associate at Norton Rose Fulbright South Africa

South Africa has a long history of discrimination, primarily based on race, due to its former apartheid policies. In addition to race however, there is also a history of discrimination and intolerance based on other grounds such as gender and sexual orientation.

On the fall of apartheid, the Constitution of Republic of South Africa, 1996 (Constitution) was enacted in order to undo the injustices of the past, and to protect and promote human dignity, equality and freedom. One of the rights enshrined in the Constitution is the right not to be unfairly discriminated against. Section 9 of the Constitution explicitly states that no person may be unfairly discriminated against, on the basis of, amongst other things, his/her sexual orientation.

The Employment Equity Act, 1998 (Employment Equity Act), was enacted to give effect to the above provisions of the Constitution, within the employment and labour setting. Section 6 of the Employment Equity Act prohibits unfair discrimination, directly or indirectly, on a number of grounds, including sexual orientation.

While direct forms of discrimination and intolerance might be slowly fading away due to South Africa’s new democratic dispensation, various forms of indirect discrimination still exists, and are sometimes done unwittingly or subconsciously. For example homosexual employees may sometimes be overlooked for promotion opportunities, due to an employer’s subconscious prejudice against homosexuals. Another example is where homosexual employees are not remunerated at the same rate as their heterosexual counterparts, even though such homosexual employees have the same seniority and experience. This again might not be done explicitly and expressly, but there could be a variety of “glass ceilings” and barriers imposed on such homosexual employees, preventing them from earning the same or similar remuneration to their heterosexual counterparts. This form of indirect discrimination is also prohibited. In fact, in terms of the recent amendments to the Employment Equity Act, employees who perform the same or similar work, or work of equal value are entitled to equal pay, unless there is a rational, justifiable and non-discriminatory reason for a differentiation in their pay. If a differentiation in pay is based on the sexual orientation of one or more of the employees in question, then this would constitute unfair discrimination.

The Employment Equity Act provides for certain dispute resolution mechanisms which can be pursued by employees who are unfairly discriminated against. An employee who alleges unfair discrimination may refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), within six months of such alleged unfair discrimination taking place (although this six month period may be extended). The CCMA will appoint a mediator to first try and conciliate and mediate the dispute between the employer and employee. If this fails, the employee may then refer the matter to the Labour Court to be adjudicated. If the employee earns below the earnings threshold promulgated by the Minister of Labour, which is currently R205 433.30, the employee may refer such dispute to the CCMA to be arbitrated.

If it is found that an employee was unfairly discriminated against, the CCMA or Labour Court may order the employer to pay the employee compensation or damages. This will depend on the nature and extent of harm and loss the employee suffered as a result of the discrimination.

It is worth noting that in terms of the Employment Equity Act, an employer may be vicariously liable for acts of discrimination and intolerance of other employees. An employer should therefore have a strict anti‑discrimination policy, and take action against any employee who discriminates against fellow employees, customers or suppliers.

In addition to the protection provided in the Employment Equity Act against unfair discrimination based on sexual orientation, the Labour Relations Act, 1995 (Labour Relations Act) also provides certain safeguards in this regard.

Section 187 of the Labour Relations Act creates the concept of an automatically unfair dismissal. This is to protect employees from being dismissed due to them exercising some of their very basic rights. One of these such rights, as stated above, is the right not to be discriminated against, based on one’s sexual orientation. Section 187 of the Labour Relations Act accordingly states that if a dismissal of an employee is related to his/her sexual orientation, then such dismissal would constitute an automatically unfair dismissal which must ultimately be resolved by the Labour Court.

If an employer is found guilty of dismissing an employee on the basis of his/her sexual orientation, then an employer may be ordered to pay the employee an amount of up to 24 months of that employee’s salary, or order the employer to reinstate the employee and pay such employee his/her back‑pay. This is a particularly harsh compensation award compared to ordinary dismissals (those which are not automatically unfair), which carry a compensation award of up to 12 months of an employee’s salary. This is to deter such dismissals which infringe on employees’ basic rights and to send a strong message to those employers that are found guilty of doing so.

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