EQUALITY IN THE WORKPLACE

 

 (ARE WE EQUAL OR JUST JUST THE SAME AS BEFORE)

Throughout the ages the issue of equality has been at the core of shaping human societies and nations. Aristotle over 2000 years ago captured the dynamics of equality well when he said, “people who are equal should be treated equally, and people who are unequal should be treated unequally”. The world still battles with establishing what equality is and how best to implement it but it’s safe to say a lot of progress has been made around the world but there is still much to do. In the realm of employment equality is a jurisprudence that has been developing especially since Constitutions around the world started to recognize fair labour practices as a human right. The spectrum of equality in the realm of employment is quite wide and for the purposes of this article we are going to look at the most crucial aspects and cases so we may have a good enough understanding of it. I shall look at the South African development of equality in the work place as an example of established good practices, legislation and case law. We shall look at equality in primarily how people are discriminated against and how they are unjustly excluded from opportunities, rights, recognition and dignity.

Women

At the heart of equality in the workplace is the place of women in the workplace. Historically women have been discriminated against due to their gender (Yeah I know right, its crazy!!🙆🏽‍♂️) . Appallingly the biology of women has been used to exclude women from the workplace. Women’s biology and childbearing “responsibility” has been used against them in terms of their “employ-ability”. In Hurley vs Mutsoe case a woman was refused an employment opportunity and it was the employer’s assertion that the woman would be unreliable because she had children. This was absurd but represented/s a widely held misconception held by a male dominated workplace. Thankfully the Constitution has clear and defined provisions regarding equality and labour practices. Section 9 of the South African Constitution 1996 provides for the right to equality and this right encompasses all aspects of human legal, political, social and economic engagement. Throughout the world in “progressive, Constitutional” countries the right to equality has been interpreted in the same way so as to include women in the work place as well.

In as far as gender wage gaps are concerned the International Labour Organization has had related Conventions and recommendation in place. As matter of fact gender equality is enshrined in the ILO’s Constitution. The ILO true to its form and substance have adopted with wide support the following Conventions; The Equal Remuneration Convention, The Discrimination (Employment And Occupation) Convention, The Workers With Family Responsibilities Convention and The Maternity Protection Convention. Member States of the ILO have to a large extent blended these Conventions into their legislation and Constitutions as well. (So much laws but what’s the situation on the ground?🤔) In South Africa much has been done legislation-wise with Acts such as the Employment Equity Act 55 of 1998, Labour Relations Act and Basic Conditions of Employment Act, the issue of gender parity are well provided for. However the reality has not matched the legal provisions. Women are still discriminated against in terms of their incomes as compared to men. In the USA research points out that women generally earn 84% of what men earn while in South Africa the percentage varies from about 60% to 80% with the global average according to the ILO being a 20% difference according to the ILO. Scandinavian countries have performed better in this regard though with the gap being an average of 4% meaning women tend to earn about 96% of what their male counterparts earn (Could it be because of Thor or its the cold weather?)🙃👏

Medical Condition

It is not uncommon to have someone being discriminated against because of their medical condition. Before we proceed on this it is important to note that some people can be denied access to some jobs or certain forms of employment due to the inherent requirements of a particular job. For example a mine worker required to operate dangerous equipment can lose or be denied the job if he/she is for example epileptic. This wouldn’t be unfair discrimination as the inherent requirements of the job naturally would exclude such persons who do not medically pass the criteria. However In the Stuart Murdoch vs City of Cape Town case such a matter was before the court. The court had to decide whether the denial of an application to be a fireman due to the applicant being diabetic was lawful. The Labour Court held that the applicant had been discriminated against on the basis of his medical condition. The applicants condition had no bearing on his ability to perform the duties of a fireman. The Court further held One of the fundamental purposes underlying equality legislation is to eliminate arbitrary decision making in the workplace and in this particular case the decision to deny the application should have been done with proper expert consultation. In Southern African those with HIV and AIDS suffer such discrimination and a lot of the time it is unwarranted and or unfair. There is a great deal many cases dealing with this, i will discuss this at length in part 2 of this article. Whereas someone can be denied employment due to failing to meet inherent requirements of a particular job such decision may not be made arbitrarily absent expert consultation.

Legislation/The Constitution

Section 1 of the Constitution RSA is founded on the values of ‘human dignity, the achievement of equality and the advancements of rights and freedoms’.

As mentioned above the Constitutional at section 9 provides for equality as a human right. The right has major consequences in the political, social and economic spheres of each individual. In as far as employment is concerned section 9 has a large bearing. Read together with section 23 of the Constitution the right to equality in employment is central right. The right to fair labour practices is in essence tied to the right to equality. Making fair labour practices a Constitutional right is a relatively new development and the jurisprudence around it is fairly recent and is in its early stages of development. Equality in the workplace normally seek to establish equality between the genders, ages, sex, race and others. Other related Constitutional provisions are the right to freedom of expression and freedom of association which have a strong bearing on the right to equality (Unions, lawyers and mostly blue collar workers love this😐). South Africa is a good example of a country that has adopted the ILO’s recommendations and conventions. Legally as it is in most countries it looks good but on the ground there is much work to be done. However having a sound legal framework to work from is a good start.

The Employment Equity Act is the enabling legislation of said Constitutional provisions. S 5 & 6 of the EEA contain a generally expressed obligation to promote equality by eliminating unfair discrimination in the workplace, and a prohibition of unfair discrimination on specified and other grounds. However Discrimination in itself is not prohibited; it is only unfair discrimination which is prohibited. The Constitution does allow for limitation of some rights by law of general application (s36 of Const). The EEA does make provisions for the limitation of the right to equality in the workplace. S 6(2) sets out defenses against discrimination which are

Affirmative action measures and inherent requirements. Of course the nature of some work entail having specific skills or attributes. It really is what it is but as previously mentioned failure to meet these criteria cannot merely be a random decision by a random guy, it has to be determined lawfully by relevant experts.

Part1 End

Equality in the workplace is a broad subject that includes a broad spectrum of issues. We have only looked at the primary issues that are essential to the “equality in the workplace” issue. Other issues such as race, treatment immigrant workers, nepotism and others I shall discuss in part two of this article. To be fair though much work has been done to address the “equality issue” around the world and some good legal frameworks are in place. This is however not enough, equality is not a favour but a responsibility and inherent right. We need to do better and truly achieve equality for all!