Workplace discrimination is defined as a work environment that exhibits bias or discriminatory behaviour in the treatment of the employees based on a number of varying factors, such as marital status, gender, pregnancy, sexual preference, race, colour, nationality, disability, belief, or age.
Such discrimination occurs at all stages and levels within an organisation, from employment to retrenchment, and from remuneration to assigning of job responsibilities. Discrimination in the workplace can have devastating consequences for the entire company.
The legal aspect
Section 6 (1) of the Employment Equity Act 55 of 1998 as amended, provides that no person may unfairly discriminate, directly or indirectly, against any employee in any employment policy or practice. Such discrimination includes 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, birth or on any other arbitrary ground.
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The Act further provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in Subsection 1.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) defines discrimination as:
“any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly:
(a) imposes burdens, obligations or disadvantage on, or
(b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds.”
Section 6 of PEPUDA supra stipulates that neither the State nor any person may unfairly discriminate against any person. This is also further reiterated in the Chapter 2 of the Bill of Rights in the South African Constitution. The South African Constitution guarantees the right to equality and also gives protection to all from unfair discrimination. It goes further by acknowledging that affirmative action measures are necessary to advance disadvantaged groups.
In accordance with Article 09 of the South African Constitution, all persons are equal before law and there can’t be any discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The law also prohibits antiunion discrimination by employers.
Discrimination in the workplace may not always be obvious or noticeable. It can come in many subtle forms, with detrimental negative effects.
General Negative Atmosphere
The biggest negative effect of workplace discrimination is the poor working atmosphere it creates. The South African workplace of the 21st century is increasingly multicultural and diverse, and instances of discrimination demoralise not just the victim but also affect a significant number of workers who affiliate with the victim’s group. This leads to a culture of mistrust, suspicion, resentment, hostility, and rivalry among the workers. All these developments spread negative vibes and harm relationships at work, especially free flow of communications and a loss of cohesion within the company which impacts on teamwork. This hampers the smooth functioning of the organisation. Another negative effect of workplace discrimination is the loss of focus and time. The resources spent on discussing discrimination, investigating a claim, and implementing remedial measures, could be better spent focusing on core activities.
Decreased Employee Productivity
The loss of morale discussed above directly translates to loss of productivity. When an employee is discriminated against, they may often feel helpless and anxiety-ridden, and may display a lack of interest in fulfilling job responsibilities. An employee who feels like an outsider because of his religious beliefs or nationality could lose self-esteem and stop contributing ideas. This begins a downward spiral of motivation and morale, which can result in absenteeism, disregard for others’ time and lack of motivation to meet deadlines. Employees who feel wronged also tend to switch jobs, forcing the organisation to spend more time and resources on hiring and training new employees. This is in addition to coping with the low productivity of a new employee.
If an employee resigns to escape discrimination, new employees will have to be hired and trained. Hiring new employees is also a strain on the company’s budget because advertising the position, administrating and interviewing, educating and training employees on policies and technology can be time-consuming and expensive. This costs the company money, and can lead to an unnecessary strain on financial resources. News of workplace discrimination tends to spread quickly. This can also hurt the company’s reputation and lead to backlashes with customers losing loyalty to the company, boycotting or shunning the company’s products and services, and thereby having a direct impact on the company’s bottom-line.
Employees have a legal recourse against unfair Discrimination in the Workplace
An employee who has been unfairly discriminated against may refer the dispute in writing to the Commission for Conciliation, Mediation and Arbitration (CCMA) within six months after the incident that allegedly constitutes unfair discrimination. If the dispute remains unresolved after conciliation, the employee may refer the dispute to the Labour Court for adjudication or an employee may refer the dispute to arbitration if the employee alleges unfair discrimination on the grounds of sexual discrimination.
If the CCMA or the Labour Court decides that an employee has been unfairly discriminated against, the Court/CCMA may make any appropriate order/arbitration award, including:
(a) the payment of compensation by the employer to that employee;
(b) the payment of damages by the employer to that employee;
(c) an order/award directing the employer to take steps to prevent the unfair discrimination or similar practice occurring in the future in respect of other employees.
It is to a company’s advantage to be aware of the effects of discrimination in this regard. The benefits of cultural diversity in a workforce far outweigh any initial integration concerns. Investing in cultural sensitivity training is not also advantageous in the business environment, but in society as a whole.
SEESA Skills Training offers a Culture & Diversity in the Workplace course that addresses these topics, and also deals with strategies in building a more cohesive and inclusive working environment. Please visit our Training website for more information at training.seesa.co.za.