Question: What laws protect women from being discriminated against in the workplace?
Answer: > Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality. The reality is that women have been historically discriminated against and the laws have developed to such an extent to prevent unlawful discrimination from occurring.
> South African women enjoy a robust and layered framework of legal protections with top one being section 9 of the Constitution of the Republic of South Africa providing that everyone has the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
> In order to extend the protection provided by the Constitution, other legislation provides similar protection against gender related discrimination, for example, the Labour Relations Act 66 of 1995, the Basic Conditions of Employment Act 75 of 1997, the Employment Equity Act 55 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
> Any form of discrimination on these grounds mentioned above is generally considered as automatically unfair.
Question: Do the protections against workplace discrimination only apply to employees?
Answer: > No, the right not to be discriminated against does not just apply to employers and employees.
> It can also apply to job applicants before they are formally employed. For example, a female job applicant cannot be refused for a position purely on the fact that she is pregnant.
Question: Are there any justifiable grounds for discrimination in the workplace?
Answer: > Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.
> There are certain instances when discrimination can be justified, for example, discrimination based on:
- affirmative action to promote employment equity; or
- inherent requirements (skills and qualifications needed) for a certain position.
Question: Can a pregnant employee be retrenched?
Answer: > Seeing as pregnancy is one of the protected grounds against discrimination in terms of the Constitution, an employer cannot retrench an employee purely due to her being pregnant.
> However, a pregnant employee can be retrenched if the employer can show that there is a real reason for the retrenchment and that it is unavoidable.
> An employer may retrench employees for “operational requirements”, for example, the retrenchment can be based on the economic needs of a business (such as a drop in sales or services). However, there are certain procedures in place that must be followed before an employer can decide to retrench an employee.
Did you know…
South African women enjoy a robust and layered framework of legal protections.