Section 6(1) of the Employment Equity Act (EEA) prohibits employers from unfairly discriminating, directly or indirectly, against an employee on numerous grounds, including gender and sex.
In my view, gender discrimination occurs, for example, where the employer forces males to belong to a benefit scheme such as a medical aid, but exempts females. A further example of gender discrimination would be where men are promoted into managerial positions at the expense of women who are suitable for the posts.
On the other hand “sex” discrimination may refer to the instance where, regardless of the employee’s gender, the employer carries out an unacceptable sex-related act against him/her. For example, the employer may have harassed the employee sexually by grabbing his buttocks. If, for instance, the harasser and victim were both male there is clearly no gender discrimination, but rather unfair behaviour relating to sex in the sense of sexual desire. Even if the employer and employee were of different genders, the act is a sexual one and the gender of the parties becomes incidental. What is primary is that the employer infringed on the employee’s right not to be touched in a sexual manner.
In the case of Benjamin vs University of Cape Town (2003, 11 BLLR 1209) Mr Benjamin was turned down for a position of Senior Subject Librarian. However, the position was given to a woman. Benjamin alleged in the Labour Court that this amounted to unfair discrimination based on sex. However, in my view, this should have been a gender discrimination dispute because Benjamin did not allege that there was any sexually related behaviour. That is, his complaint revolved purely around the gender classification of the successful and unsuccessful job candidates.
Employers need to remember that sexual discrimination and sexual harassment are legally not confined to touching in a sexual way. Sexual harassment can be any sexually related act that is unwelcome in the eyes of the recipient such as the display of ‘candid’ posters, sexual internet visuals, dirty jokes, sex-related ‘playfulness’, crude language or even physically related compliments in the workplace.
Employers also need to remember that if they allow such incidents to occur, it is the employer (the company or organisation) and not the actual perpetrator who will land up in court. In the case of Ntsabo vs Real Security that I mentioned in a previous article, the Labour Court found that a sexually harassed employee had been unfairly discriminated against by her employer. This was not because the employer itself had sexually harassed the employee, but because the employer did not take the necessary action to deal with the behaviour of the perpetrator. As the employer thereby infringed the provisions of section 60 of the Employment Equity Act, the Court awarded substantial damages against the employer.
It is also possible that discrimination can take place which involves both sex and gender discrimination at the same time. For example, in a company where women are not promoted into management positions because of their gender, the male MD may offer a female employee a promotion if she sleeps with him. Or he may refuse to consider her application because she has refused to sleep with him. This involves both a barrier against employees because they are women, and sexually motivated behaviour prejudicial to the victim.
Another example of gender discrimination is highlighted in the case of Atkins vs Datacentrix )Pty) Ltd (2010, 4 BLLR 351). Here, the newly appointed employee was dismissed after informing the employer that he planned to undergo a sex-change operation. The employer denied that the planned sex change was the reason for the dismissal and claimed that the employee’s failure to disclose his plans prior to employment constituted misrepresentation meriting dismissal. The Court rejected this claim. It found that the employee had not been obliged to divulge his sex-change plans and that the principal reason for the dismissal was the employer’s dislike of the planned sex change. The dismissal was therefore automatically unfair and the Court ordered the employer to pay the employee R100 000 in compensation.
In the light of the above, employers need to protect themselves by:
- Updating their attitudes and employment policies so as to focus on the employee’s ability to do the job, rather than on outdated concerns as to irrelevant characteristics of the employee. These policies also need to be designed to prevent sexual harassment.
- Training management and employees in these revised policies.
To book for our CASE LAW UPDATES seminar in Johannesburg on 9 November please contact Ronni via email@example.com or 0845217492.