What constitutes unfair discrimination in the workplace?


The principal protection against discrimination in the workplace is established by the Employment Equity Act No 55 of 1998 [EEA]. The EEA was amended by the Employment Equity Amendment Act No 47 of 2013 [‘the Amendment Act’].


Section 2 of the EEA sets out that the purpose of the Act is “Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination….” (Own Emphasis)


Section 5 of the EEA provides that, “Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.” (Own Emphasis)


Fair or Unfair Discrimination:

In Harksen vs Lane NO & Others (1997) 11 BCLR 1489 (CC), the Constitutional Court established a three-stage enquiry into an alleged violation of the Equality Clause namely:

  1. Once the differentiation is based on the listed grounds, e.g. race, colour, nationality, etc., the discrimination is established.
  2. Then one has to consider whether the discrimination is unfair.
  3. If the discrimination is on the specified ground, the unfairness is presumed. It is then up to the employer to prove on a balance of probabilities that the discrimination did not take place or it is justifiable.


Differentiation is defined as “the action or process of differentiating or distinguishing between two or more things or people”.


Discrimination is defined as “the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age or sex.”


In Chizunza vs MTN (Pty) Ltd and Others (2008) 29 ILJ 2919 (LC), it was highlighted that “differentiation only becomes discrimination once a differentiation takes place for an unacceptable reason”. (Own Emphasis)


In a nutshell, ensure that you familiarize yourself with your company’s internal grievance procedures and if you are unfairly discriminated against in the workplace, contact us immediately so that we can advise on the way forward.


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