Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

The submission will deal with the following issues:
· Structure of the Bill;

· Definitions

· The Bill’s approach to sectors

· Promotion of equality and positive measures;

· Enforcement mechanisms

· Application of the bill; and

· Implementation of the bill.
2. Summary of Recommendations

· COSATU recommends that the Bill be redrafted in plain language.

· Family responsibility, socio-economic status, national origin and HIV/AIDS should be reinstated in the prohibited grounds of discrimination.

· The words “recognised grounds” should be taken out of the definition of prohibited grounds of discrimination and replaced with the term “arbitrary ground”.

· COSATU believes that fairness should be the overriding defense to a claim of discrimination, instead of including multiple tests as implied by the insertion of the word reasonable and justifiable. Rather, these concepts should be embedded in the test for fairness instead of being listed in the bill.

· The onus should reside with the respondent to prove that discrimination is fair and is not part of the prohibited grounds of discrimination. Whether discrimination is unfair depends on its context and relevant circumstances including the factor listed in the recommendation under defenses to unfair discrimination.

· COSATU supports the proposal at this stage to omit sectors in their current form from the bill. Instead, they should be dealt with in the form of schedules to be formulated in a specific timeframe and in consultation with stakeholders. This will provide the space for further investigation and discussion on how to deal with sector specific discrimination and how to combat them. These schedules will have to be attached to the Act and will guide the courts when interpreting this law. The Minister of Justice should be mandated to spearhead the process of developing schedules in a consultative manner. A workable and comprehensive definition of unfair discrimination, must clearly cover forms of discrimination within particular sectors.

· At this stage we recommend that employment be dealt with in the schedules as part of the general approach to dealing with sectors. The issues posed in this submission regarding employment should form a part of the process to refine the employment section. The premise of our submission is that this Bill has to deal with employment in one way or the other. What needs to be further fleshed out is the relationship with the Employment Equity Act (EEA) to remove any confusion and ambiguity that may ensue.

· The clause dealing with the application of the Act should unambiguously state that this legislation applies to the state and all persons.
3. Structure of the Bill

The Bill is not written in plain language and this makes it difficult to follow. The wording of provisions in the bill is long-winded. This defeats the principles as enshrined in section 4(1).3 Examples of this are in the definition section which include the definitions of “disability discrimination”, and “unfair discrimination”.

In addition there is a proliferation of definitions and concepts, which at times are inconsistently used or used in a confused fashion. Related to this is the fact that different parts of the Bill do not neatly articulate with each other and substantive issues of law are contained in definitions. For instance, it is not clear how the general definition of unfair discrimination relates to the specific definitions as provided in the sections dealing with sectors.
Recommendation

· Against this background, COSATU recommends that the Bill be redrafted in plain language.4

4. Definitions
4.1 Prohibited Grounds of Discrimination

In terms of section 1(xvii) prohibited grounds of discrimination includes one or more of the following grounds of discrimination: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or any other recognised ground”. We have two broad concerns with this definition, first is the exclusion of other grounds of discrimination from the definition and secondly, the insertion of the words “recognised ground”.

4.1.1 Omitted Grounds of Discrimination

The various definitions as outlined in section 1 are an attempt by the drafters to prohibit unfair discrimination in every form and in all sectors. The definition of prohibited grounds however, omits very important areas. We have noted with concern the removal from previous drafts of this Bill of the following grounds of discrimination:

· Family responsibility;

· National origin

· HIV/AIDS; and

· Socio-economic status

(a) Family responsibility

We note that some of these grounds are included in specific parts of the Bill. For example, family responsibility is included in section 10(a) of the bill where it defines gender discrimination. Why is it left out of that part of the bill that outlaws discrimination generally? It is important to note that family responsibility is included in the general list of grounds of discrimination set out in section 6 of the Employment Equity Act, 1998.

(b)National Origin

The same is true for the various grounds of discrimination referred to in the definition of racial discrimination and racism (section 7 of the Bill). Some of these grounds are not contained in the broad band of prohibited grounds, e.g. national origin. On what basis is this ground left out of the generally prohibited grounds of discrimination?

The removal of these points from the Bill is a cause for concern. To argue that these grounds are contained implicitly in the Bill is insufficient because it implies that these grounds have been downgraded.
(c)HIV/AIDS

It is important to note that sections 6 and 7 of the Employment Equity Act, 1998 specifically refer to discrimination based on a person’s HIV/AIDS status. This recognised the extreme problem facing this country when it comes to HIV/AIDS, sending an explicit message that parliament would not tolerate discrimination on this ground. It is inconsistent for this Bill to take a different stance to that of the EEA.

Those who are infected and affected by the disease suffer the cruelest form of unfair discrimination, stigmatisation and prejudice from society, which continues to frown upon them. Those who speak out in an attempt to create awareness are often victimised.

The negative effects of this disease on our economy are widely known . Therefore, positive measures to deal with this crisis are an absolute priority.

The failure to include this ground ignores the fact that South Africa is one of the countries with the highest infection rate in the world. It also ignores the social stigma associated with this infection. To argue that other grounds cover it sends a message that HIV/AIDS is not regarded as that significant or important, but merely a burden to society.
Some of the reasons advanced are based on the concerns raised by the insurance companies that the inclusion will affect their profits. However, the final decision on this very sensitive issue lies with government, which has the responsibility to serve the people, many of whom are infected with the virus. This major challenge faces government, the private sector and the community at large.
(d) Socio-economic status

Many of the provision of the bill in effect deal with the need to prohibit unfair discrimination based on socio-economic grounds, be it in the public or the private sector (see below). The removal of this ground from the prohibited grounds of unfair discrimination appears to contradict this. We therefore call for its re-inclusion in the bill.

Recommendation:

· COSATU recommends the re-insertion of family responsibility, socio-economic status, national origin and HIV/AIDS in the prohibited grounds of discrimination.

4.1.2 Recognised Grounds of Discrimination

The definition of prohibited grounds contains a reference to the term “recognised ground”. What is a recognised ground? Who determines whether a ground is a recognised ground?

Recommendation:

· We suggest that this be replaced with the term arbitrary ground. This is the way it is expressed in item 2 of schedule 7 of the Labour Relations Act, 1995. The test for whether a matter is a ground for discrimination should not be whether it is recognised or not, but whether the basis for the differentiation is arbitrary or not.

4.2 Unfair Discrimination

The definition of unfair discrimination is very broad and difficult to follow. The language and structure of the definition is unworkable. This is made even more difficult if one tries to understand Chapter 3 of the Bill that refers to possible defenses that a discriminator may invoke.

To date the courts, in particular the Constitutional Court has developed a test for unfair discrimination.5 COSATU believes that it may well be advisable to reconcile this test with the definition in the Bill to avoid confusion and to give credibility to the legal precedents that have been established.
In terms of court jurisprudence, whether or not discrimination is unfair, depends on the impact that the discrimination in question has had on the complainant, taking into account but not limited to the following factors:

· The position of the complainant in the society and whether she or he has suffered in the past from patterns of disadvantage; and

· The extent to which the discrimination has affected the right or the interests of the complainant and whether the discrimination has led to the impairment of the complainant’s fundamental human dignity or constitutes an impairment of a comparably serious nature.
It should be borne in mind when it comes to broad and fluid concepts like fairness that they are often given meaning only in the context in which the acts of discrimination occur.
5. Defenses to Discrimination

Section 43 is badly worded and is confusing. It provides for general defenses against claims of direct and indirect discrimination if it can be shown that discrimination was “reasonable and justifiable in the circumstance or does not fall within the grounds of discrimination.” Factors to be taken into account in deciding whether the discrimination was justified and reasonable include (a) the purpose of the discrimination; (b) the nature and extent of the discrimination including the nature and extent of the resultant disadvantage hardship.”

To the lay person it may seem that the concepts unreasonable, unjust and unfair are interchangeable. To some unfair discrimination is also unreasonable and unjust and vice versa. This is not necessarily the case. It is possible to have unfair discrimination that is reasonable. Certainly, this is how the Courts will interpret this Act because in numerous places the Bill refers to unjust or unfair discrimination. (See for example the definition of unfair discrimination, section 14 and section 43). A court will ask the question why are both words used in, for example, section 14. It may decide that different things must be meant by the words unfair and unjust otherwise only one of the words would have been used.
The concept of unfairness is the one referred to in the Constitution. It envisages that discrimination may take place if the differentiation is fair. For example, making the rich pay more taxes is fair. They are discriminated against because they are privileged. The test of fairness is not exactly the same as the test of reasonableness or justness. COSATU believes that to ensure that there is no ambiguity and that the test of fairness is not ‘watered down’, consistency must be maintained. Fairness, and not reasonableness or justness, should be the only qualifier of discrimination. We are proposing drafting to give effect to these amendments, which will be forwarded to the committee in due course.
Recommendation:

· COSATU believes that the section should state that fairness is a defense to a claim of discrimination. It should then set out the factors to be taken into account in order to determine that ‘fair discrimination’ is ‘reasonableness and justifiable discrimination’ and then try to set out the factors relating to reasonableness and justifiability to determine whether there is fairness or not. This is not only cumbersome and confusing, but also a recipe for lengthy and drawn out litigation.

The factors to determine fairness would include:

· The purpose of discrimination;

· The nature and extent of the discrimination;

· The nature and extent of the resultant disadvantage; and

· Whether there is a discriminatory and disadvantageous means to achieve the purpose of the discriminatory act.
But these are not the only factors. What about the factors listed above that come from judgements of the Constitutional Court? Furthermore, these factors should not constitute an exhaustive list. They should be considered holistically and all together, i.e. no one factor can determine whether there is fairness or not.
The concept of ‘reasonable accommodation’, as referred to in section 43(3) is imperative and accords with a developmental approach.
The Bill’s unashamed defense of affirmative action as not constituting unfair discrimination is welcome. This is important in South Africa where certain groups, especially those previously advantaged by discrimination, equate affirmative action with reverse discrimination.

6. Burden of Proof

Section 45 is extremely problematic. It provides that the victim of discrimination must establish a prima facie case of unfair discrimination, whereupon the discriminator must prove that there is either no discrimination or that the differentiated treatment is fair. It is often difficult for a victim of discrimination to establish the unfairness of the discrimination. Furthermore, what constitutes a prima facie case?
COSATU believes that this provision may be contrary to section 9(4) of the Constitution, which states that discrimination on one or more of the prohibited grounds is unfair until it is established that discrimination is fair.
Other statutes have followed the Constitution’s approach in section 9(4). When it comes to a dismissal, including dismissal for discriminatory reason, it is the employee who must prove the dismissal and the employer who must prove that it was fair. (See section 192 of the Labour Relations Act, 1995).
When it come to an infringement of an employee’s right to freedom of association, which is regulated in Chapter 2 of the Labour Relations Act, 1995 and which essentially deals with discrimination against an employee for reasons relating to her or his association with a trade union, it is the party who allege the discrimination that must prove the facts of that discrimination.
Recommendation:

· The onus should reside with the respondent to prove that discrimination is fair and is not part of the prohibited grounds of discrimination. Whether discrimination is unfair depends on its context and relevant circumstances including the factors listed in the recommendation under defenses to unfair discrimination.

7. The Bill’s Approach to Sectors

7.1 Overview

COSATU supports the need to deal with forms of discrimination in sectors. The Bill prohibits discrimination in the following sectors: employment; education; health care; accommodation, land and property; insurance; pensions; goods, services and facilities; associations and partnerships; clubs and sport; and professions. The rationale behind the inclusion of sectors is to address sector specific forms of discrimination. The bill makes provision for including sectors other than those listed in the bill.6
As pointed out in the joint submission of the Women’s Legal Center and the Socio-Economic Rights Project: Community Law Center (UWC), there are obvious advantages for including sectors in the bill. First it provides greater clarity and certainty as to exactly what constitutes discrimination within various sectors. This is important both for interpretative purposes in courts as well as for educational purposes. Many instances of discrimination within particular sectors in South Africa are not self-evident and require clear identification. A sectoral approach also takes account of the differences and nuances in the way discrimination occurs within particular sectors.
Secondly, the inclusion of sectors is linked to the inclusion of socio-economic status or social condition as a ground of discrimination. The purpose of including a ground of this nature is to combat stereotypical assumptions and prejudices against a person on the basis that they are poor, on their education level or other socio-economic factors.
The relevant provisions of the Constitution provide that everyone has the right to access to housing, health care services, etc. When these provision are read with the right to equality in section 9 of the Constitution, it clearly mean that everyone has access to these socio-economic rights on the basis of equality and freedom from discrimination. Most of the sectors in the bill include socio-economic rights that are provided for in the Constitution. This is why it is difficult to understand why discrimination on socio-economic grounds is excluded from the prohibited grounds of discrimination.
The sectors seek to ensure access to the specific socio-economic rights based on equality and freedom from unfair discrimination. Legislation of this nature cannot eliminate the inherent inequalities in a market-oriented economy. It can however, have an impact on the outcomes and operations of the market. The bill should strive to prevent forms of discrimination against the poor that are based on prejudice and stereotyping. Often these stereotypes are not based on reasonable economic criteria but on perceptions and prejudice. Examples include referring to rural women as a bad credit risk who do not repay their loans or the general practice by banks of red lining black areas.
Notwithstanding our support in principle for the inclusion of sectors in the Bill, we believe that the bill does not in practice adequately address discrimination within sectors. Prevalent forms of discrimination in particular sectors are not referred to, for example language barriers in the health sector, curriculum barriers in higher education, and so forth. Most of the forms of unfair discrimination within each sector can adequately be covered by the general prohibition of discrimination.
Another area of concern is the fact that there are different concepts and terminology used in dealing with unfair discrimination within each sector. Each of these different concepts requires that different tests be applied. For instance, some sectors refer to ‘unjust exclusion’, unfair disadvantage’ and ‘unfair discrimination’. This will cause confusion as to what test should be applied in order to determine whether unfair discrimination has occurred within a particular sector. This is compounded by a lack of clarity on the relationship between sector specific definitions and the general definition of unfair discrimination
Recommendations:

· COSATU supports the proposal at this stage to omit sectors in their current form from the bill. Instead, they should be dealt with in the form of schedules to be formulated in a specific timeframe and in consultation with stakeholders. This will provide the space for further investigation and discussion on how to deal with sector specific discrimination and how to combat them. These schedules will have to be attached to the Act and will guide the courts when interpreting this law. The Minister of Justice should be mandated to spearhead the process of developing schedules in a consultative manner. A workable and comprehensive definition of discrimination must clearly cover forms of discrimination within particular sectors.

7.2 Employment

We would like to say a few words on the employment sector, linked to our overall comment on sectors. The Employment Equity Act (EEA), Act 97 of 1998, by providing for the implementation of positive measures, gives effect to the Constitutional vision of substantive equality in the employment sphere. Chapter 2 of the EEA prohibits discrimination on one or more grounds and it is applicable

to all employers regardless of their size.
Chapter 2 of the Employment Equity Act does not apply to members of the Defense Force, the National Intelligence Agency and the South African Secret Service. However, members of these institutions have the constitutionally entrenched right to equality. By including employment as a sector in the bill, this will cover employees falling outside of the scope of the EEA.
Secondly, the Chapter 3 of the EEA only applies to designated employers; defined as those who employ 50 and more workers, or those employers who volunteer to comply with the Act. Chapter 3 of the EEA contains provisions related to positive measures that employers should implement. As part of the positive measures employers are required to reasonably accommodate people from designated groups, in terms of section 15(2) of the EEA. The notion of ‘reasonable accommodation’ is linked to the imperative to ensure that steps are being taken to deal with discrimination and the effects of discrimination. In terms of section 43(3) of the Bill “if unfair discrimination is alleged, there may be no finding that it is reasonable and justifiable in the circumstances unless it is established that the person or group affected by the discrimination cannot be accommodated without unjustifiable hardship. It is for this reason that employment, as a sector should be dealt with in this legislation. Employers falling below the threshold of the EEA will have to take steps to eliminate discrimination and promote equality.
From this perspective the bill will supplement the EEA by requiring that those facing discrimination be accommodated. The extent of the obligation to be imposed on employers falling below the minimum threshold of the EEA require further discussion. The requirement and process to comply with the Bill’s provision regarding positive measure should be tailored to suit these employers and need not necessarily be as elaborate as the requirements of the EEA. The Bill contains the basic framework for such an approach by balancing implementation of positive measures such as reasonable accommodation with the need to avoid “unjustifiable hardship”. It is important, however, that the notion of unjustifiable hardship should not be used to frustrate the bill.
Another area of concern is the lack of clarity whether applicants for a job will be covered in this Bill. Applicants are included in the definition of employee for purposes of section, 6, 7 and 8 of the EEA. The respective sections of the EEA deal with prohibition of unfair discrimination, medical testing and psychological testing and other similar assessments. Clarity on this question is important as the bill currently prohibit unfair discrimination in advertisement for jobs and selection criteria in terms of section 14.
We support section 46(3).7 This is an attempt to clarify the jurisdiction of labour dispute resolution forums such as the CCMA and that of the Equality Courts. In our understanding workers not covered by the EEA can bring cases of unfair discrimination before the Equality Courts. Further, it will limit and prevent forum shopping by clarifying the jurisdiction of the Equality Courts and the labour dispute resolution forums. However, it is important to further deal with the practical implications that will flow from this section.
First, there is a need for public education to inform people which piece of legislation they should rely on if they want to bring unfair discrimination cases. The role of the SAHRC, the CGE and Government departments is of vital importance in raising public awareness in this regard. Secondly, there is a need to tap into the experience of other institutions such as the Labour Court to assist the Equality Courts.