INTRODUCTION
SA society is characterised by great economic and social inequality resulting from past patriarchal and
discriminationatory laws, policies and practices generally and in the work pale.
In the workplace, discrimination was implemented by laws such as the Industrial Conciliation Act, which excluded
black people from collective bargaining, the mines and work act, which provided for job reservation for whites, the
wage act, which sanctioned differentiation in wage determinations based on race and sex, and the public service
act, which authorised discrimination based on sex. Limited training was offered to black people and females, which
placed them at a skills disadvantage. Disabled people couldn’t easily enter the workplace.
Generally, discrimination based on race, sex and disability has resulted in patterns of disadvantage for these
groups.
Equality was embraced only in the 90s under new constitutional order in section 9 of the constitution as follows:
Equality included the full and equal enjoinment of all rights and freedoms. To promote the achievement
of equality, legislative and other measures, designed to protect or advance persons or categories of
persons, disadvantaged by unfair decimation, may be taken.
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, age, disability. Religion, conscience, belief, culture, language and birth
No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms
of subsection
The constitution acknowledges SA discrimtory past and holds the countries founding values to be human dignity,
the achievement of equality, the advancement of human rights and freedoms, and non-racism and non-sexism.
The wording of the constitution – that equality still has to be achieved – indicated that equality has been embraced
as a goal, but that this is only the first step in the achievement of such a goal.
It is clear that section 9 provides for prohibition of unfair discrimination on a number of grounds, and also
authorises AA. The EEA gives content to the constitution.
Fewer discrimination cases are based on unspecified ground. Examples of unspecified grounds on which cases have
been based, include qualifications, tertiary teaching and research experience, professional ethics, mental
health/illness, political or cultural affiliation and being a parent.
, BASIC TERMINOLOGY
FORMAL AND SUBSTANTIVE EQUILITY
DIFFERENTIATION AND DISCRIMINATION
There is a significant distinction between differentiation and discrimination.
Differentiation: is treating people differently, occurs frequently in the workplace – when people apply for posts and
when employees apply for promotion. This form of differentiation is acceptable because it is based on valid
grounds and serves a legitimate purpose. Differentiation in pay levels does not in itself constitute discrimination if
it is based on acceptable considerations such as levels of responsibility, expertise and skills.
Discrimination: is particular form of differentiation that is based on an unlawful ground, even if there is not a
specific intention to discriminate.
DIRECT AND INDERECT DISCRIMINATION
Direct – easiest form of discrimination to determine. It occurs if someone is clearly treated differently because of
certain characteristics – race or gender.
