DIFFERENCE or DISCRIMINATION: When does different treatment become discrimination?

Individual Dignity

Discrimination afflicts our society and workplaces in myriad ways. It reveals itself in obvious “shout-out” ways and in subtle disguises which are hard to detect or even to comprehend. The notion of discrimination is founded on the universal human right to individual dignity. The law articulates the rules and the courts apply them to the facts of cases presented to them. This is a complex business.

Onus of proof

If an employee claims unfair discrimination on a listed ground – such as race, gender, religion etc. the employer has the onus to prove that the difference in treatment was not based on a listed ground. This is reversed if the employee claims discrimination on an unlisted ground or “…other arbitrary ground”. The courts have held that the employee must first specify exactly what the unlisted arbitrary ground is – and then prove it.

Criteria

And with this in mind, Section 11 was also amended to include the following criteria –

“(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove,

on a balance of probabilities, that —

(a) the conduct complained of is not rational;

(b) the conduct complained of amounts to discrimination; and

(c) the discrimination is unfair.’

Three Steps
The Constitutional Court (CC) has described three steps in the process of considering a discrimination case –

Step 1: Establish whether the respondent’s policy differentiates between people.
Step 2: Establish whether the differentiation amounts to discrimination; and
Step 3: Determine whether the discrimination is unfair….[1]
The CC and the Labour Court have also considered unlisted grounds as acts of discrimination if they are analogous (similar) to the listed grounds…”

The Test for Discrimination on Unlisted Grounds

The Labour Court has expressed the test very usefully as follows –

“The test is that the differentiation must impair the fundamental dignity of people as human beings because of attributes or characteristics attached to them. Not every attribute or characteristic qualifies for protection against discrimination. Smokers, thugs, rapists, hunters of endangered wildlife and millionaires, as a class, do not qualify for protection.

What distinguishes these groups from those who deserve protection?

The element of injustice arising from oppression, exploitation, marginalization, powerlessness, cultural imperialism, violence and hardship endured by particular groups or the worth and value of their attributes, are qualifying characteristics that distinguish differentiation from unfair discrimination….” [2]

Discrimination has a decidedly negative or pejorative connotation. A differentiation only becomes discrimination once a differentiation takes place for an unacceptable reason.”

TIP: HR Policies and practices can unwittingly generate outcomes which cause discrimination. So too can the in-grained habits and behaviours of the “advantaged” in their every-day interactions in the workplace with the “previously disadvantaged”. Workplaces are melting pots of diverse communities. There is no better place to imbed, practice and live the value of conscious non-discrimination.