| (4.1) | Notes and Explanations |
Remember that acts of discrimination are unlawful if all of the following are present:
| (a) | people are treated differently; |
| (b) | the different treatment constitutes discrimination; |
| (c) | the discrimination is unfair; and |
| (d) | the discrimination is not reasonable and justifiable in accordance with the provisions of section 36 of the Constitution. |
Note that it is not unfair discrimination to take measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.
Further remember that the guidelines provided for in this code must be read within the context of the Equality Act which prohibits unfair discrimination.
Wherever in this code reference is made to equal treatment, this means treating like cases alike and unlike cases differently in proportion to their likeness or difference. This means that in certain cases it is the very essence of equality to make distinctions between groups and individuals in order to accommodate their different needs and interests.
| • | Policies and practices: Review current policies and practices to eliminate factors that undermine equality. Remove all discriminatory provisions from policies and practices. |
| • | Language: To the extent possible, the language used must accommodate differences. Measures must be taken to ensure that language usage is responsive to the language needs of different persons. |
| • | Promotion of equality: In the first instance, exclusion must be avoided. Secondly, pro-active measures must be designed to address indirect exclusions that are a result of past discriminatory practices. Thirdly, pro-active measures must be implemented to promote equality for the present and the future. |
In this part of the code, reference is made to different sectors such as education, pensions and employment. In respect of each sector, general statements are made, followed by specific do’s and don’ts as examples.
| • | Membership of organisations, clubs or sport associations |
Pro-active measures should be developed and implemented to include persons who were previously excluded from membership due to past patterns of discrimination. Membership criteria must be of such a nature to ensure representivity.
The following are examples:
| (a) | No person is excluded from membership solely because of him or her being a member of a particular group for example exclusion on the grounds of race, gender, disability, etc; |
| (b) | Certain groups are not relegated to certain categories of membership; and |
| (c) | Every member enjoys the same rights, for example the right to vote, to elect the leadership of organisations, clubs or sport associations, etc, and the equal right to participate in the decision-making processes of such entities. |
| • | Procuring goods and services |
In procuring goods and services, no person must be excluded solely on the basis of her or his race, gender or disability. Moreover, measures must be developed and implemented to ensure that goods and services are procured from persons who were previously disadvantaged.
The following are examples:
| (a) | An invitation for the procurement of goods and services must be formulated in a manner that ensures that every person has an equal opportunity in supplying the goods or rendering the service. The specifications and the conditions in the invitation must not by their mere nature have the effect of excluding persons from disadvantaged groups. |
| (b) | The media used in inviting persons to supply the goods or to render the services must be chosen with circumspection so as to ensure that all categories of the community have access thereto and are allowed an equal opportunity to respond to the invitation. It must therefore be as inclusive as possible and include new ways to reach people previously excluded. |
| (c) | The time periods mentioned in the invitations must ensure that all persons are afforded an equal opportunity to respond timeously thereto. |
| (d) | The language used in the invitation must, as far as possible, be understandable to all persons. |
| (e) | The criteria for selection must be non-discriminatory. It must furthermore include measures to address historical imbalances particularly in terms of race, gender and disability. |
| (f) | Contracts for the procurement of goods and services must not contain discriminatory (directly or indirectly) clauses. Contracts must also not bring about less favourable terms for persons previously disadvantaged. |
| (g) | In securing accommodation for events, make sure that the facilities are accessible to all. This includes accommodating differences, for example disability, or accessibility by means of public transport, etc. |
| (h) | In securing accommodation for events, special measures must be implemented and efforts must be made to make use of accommodation owned or controlled by previously disadvantaged persons. |
| • | Accommodation, property, land and facilities |
Accommodation refers to residential and business accommodation. Equal opportunity and non-discrimination must guide policies and practices relating to the above.
The following are examples:
| (a) | Make sure that your business premises and the facilities are accessible to all persons. This includes accommodating differences such as disability. |
| (b) | If you provide accommodation as part of your business, all persons making use thereof must be treated equally. |
| (c) | If you have property to let, all prospective tenants must be treated equally and you may not refuse to offer premises to a person owing to his or her race, gender, disability, etc. |
| (d) | No person may be evicted solely on the basis of him or her being a member of a particular group. |
| (e) | No person may refuse to sell his or her property to a person solely based on his or her race, gender, disability, etc. |
| (f) | Steps must be taken to remove existing obstacles that unfairly limit or restrict disabled persons from access to accommodation. |
The following is applicable to any person who is not included in the definition of "designated employer" in section 1 of the Employment Equity Act, 1998. It includes local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service.
Employment policies and practices must not have the effect of excluding persons from groups identified through grounds of discrimination. Pro-active measures must be adopted and implemented to address indirect exclusion that is the result of systemic discrimination based on gender and past forms of discrimination and practices.
Employment practices and policies include—
| (a) | recruitment procedures, advertising and selection criteria; |
| (b) | the appointment process and appointments; |
| (c) | job classification and grading; |
| (d) | remuneration, employment benefits and terms and conditions of employment; |
| (f) | the working environment and facilities; |
| (g) | training and development; |
| (h) | performance evaluation systems; |
| (l) | disciplinary measures other than dismissal; |
| (o) | adoption of measures prohibiting hate speech. |
The following are examples:
| (a) | Review current employment practices and policies to eliminate factors or criteria that undermine equal access and enjoyment of employment opportunities. |
| (b) | The wording of a job advertisement must be drafted in such a way as to ensure that it reaches all potential applicants from all sectors of society, be it geographical, gender based, or other means of differentiation, for example advertisements must not have a gender bias towards men or urban based communities. |
| (c) | Methods and procedures used in selecting applicants for employment must be fair. The same processes and procedures for assessing all applications must be followed. The processes and procedures must be inclusive and culturally friendly. |
| (d) | Terms or conditions of employment must be equal for all applicants, include the full range of benefits available from employment and be non-discriminatory. This includes the salary package, promotion, leave, training, transfers, retrenchment and any other benefits. |
| (e) | Conditions of service must accommodate differences relating to parental responsibilities and disability, for example employees must be afforded sufficient time for child rearing responsibilities and they may not be disadvantaged as a result of having such time. This includes adequate leave, or the arrangements to work flexi-time, etc. |
| (f) | Persons previously disadvantaged may not be appointed on less favourable terms. |
| (g) | The endorsement of a policy prohibiting hate speech. |
| (h) | The endorsement of a policy addressing harassment. |
| (i) | The removal of existing obstacles that unfairly limit or restrict disabled persons from obtaining employment. |
| • | Rendering of services and provisioning of goods |
In rendering services and providing goods —
| (a) | persons previously excluded on grounds of discrimination must be included; and |
| (b) | equal and non-discriminatory policies and practices must guide your actions. |
In planning and rendering services, attention must be given to differences in respect of clients with regard to gender, race, language, disability and other appropriate factors such as economic status.
The following are examples:
| (a) | If part of your business is to render a service, you must ensure that the quality of your service is always the same, irrespective of who your client is. |
| (b) | In rendering your services, you must ensure that you properly understand your client and where possible, make use of somebody who is conversant with the language used by your client. |
| (c) | If you are an NGO or CBO make sure that your funds are utilised for the betterment of all the citizens. |
| (d) | You may not refuse or fail to provide any goods or render any service to any person or group of persons on one or more of the grounds of discrimination. |
| (e) | You may not impose any term, condition or follow any practice that perpetuates the consequences of unfair discrimination or make an exclusion regarding access to financial resources. |
| (f) | You may not unreasonably refuse to grant a service to persons solely on the basis of their HIV/AIDS status. |
| (g) | You may not refuse to make available a policy to any person on one or more of the grounds of discrimination. |
| (h) | You also may not unfairly discriminate in the provisioning of benefits, facilities and services related to insurance. |
| (i) | You may not unfairly deny or refuse a person access to health care facilities. |
| (j) | You may not unfairly fail to make health care facilities accessible to any person. |
| (k) | You are not allowed to refuse to provide emergency medical treatment to persons of particular groups identified by one or more of the grounds of discrimination. |
| (l) | Special measures must be developed and implemented to ensure that persons, who were previously excluded from receiving treatment at a particular facility, are benefiting from the service. |
| (m) | Staff at health care facilities must be responsive to the needs of all people and treat them as equals, with compassion and respect. |
| (n) | Steps must be taken to remove existing obstacles that unfairly limit or restrict disabled persons from access to goods and services. |
In regard to education, unfair exclusion of any person in whatever capacity in an educational institution must be avoided. Proactive measures must be adopted and implemented to create opportunities for the inclusion of persons previously excluded from educational institutions. This applies to learners, educators and governing bodies.
The following are examples:
| (a) | No learner may be unfairly excluded from educational institutions, including learners with special needs. |
| (b) | You are not allowed to unfairly withhold scholarships, bursaries or other forms of assistance from learners of particular groups identified by the grounds of discrimination. |
| (c) | Diversity in education must reasonably and practicably be accommodated. |
| (d) | No person may be unfairly excluded as an educator from a particular educational institution. |
| (e) | Educational institutions must put in place programmes to educate educators on diversity. |
| (f) | Special steps must be taken to— |
| (i) | appoint educators, who were previously denied an opportunity to work as an educator at a particular institution solely on the basis of his or her race, gender or disability; |
| (ii) | include learners who were previously denied an opportunity to receive education at a particular institution solely on the basis of his or her race, gender or disability. |
| (g) | No person may be unfairly excluded from membership of a governing body of an educational institution on the basis of his or her race, gender, economic status or disability. |
| (h) | The composition of a governing body of an educational institution must be reviewed to ensure representivity in terms of race, gender and disability. |
| (i) | A policy prohibiting hate speech must be endorsed. |
| (j) | A policy addressing harassment must be endorsed. |
| (k) | Steps must be taken to remove existing obstacles that unfairly limit or restrict disabled persons from access to education. |
Policies and practices relating to the operation of pension funds must advance the principles of equality and non-discrimination. Measures must be put in place to remove inequalities and discrimination that resulted from past policies and practices.
The following are examples:
| (a) | A person may not be unfairly excluded as a member of a pension or retirement fund. |
| (b) | A person may not be unfairly excluded from receiving any benefit from such a fund on one or more of the grounds of discrimination. |
| (c) | A fund may not unfairly impose a higher burden, directly or indirectly, on a person on the basis of his or her gender, race or disability. |
| (d) | Steps must be taken to remove existing obstacles that unfairly limit or restrict disabled persons from access to pension benefits. |
No one must be excluded as a partner in a partnership solely on the grounds of his or her race, gender or disability. Pro-active measures must be taken to include as partners persons who were excluded as a result of historical patterns of discrimination.
The following are examples:
| (a) | You may not determine in an unfair and discriminatory manner who should be invited to become a partner in a partnership. |
| (b) | A person who is invited to become a partner or is admitted as a partner must be so invited or admitted on equal terms as other partners. |
| (c) | Special measures must be adopted and implemented to include persons from previously disadvantaged groups as partners. |
No person may be excluded as a member of a professional body on one or more grounds of discrimination. Measures must be adopted and implemented to broaden access to such bodies for members of historically disadvantaged groups.
The following are examples:
| (a) | You may not unfairly refuse to consider a person’s application for membership on any of the grounds of discrimination. |
| (b) | You may not unfairly deny a member access to or limit a member’s access to any benefit provided by a body. |
| (c) | Conditions to become a member should not unfairly exclude people on the basis of, amongst other things, race, gender or disability. |
| (d) | Bodies must review their governing structures such as boards, councils, etc, and other decision-making structures to assess the extent of representation and inclusiveness of particular groups. |
| (e) | Measures must be adopted and targets must be set to achieve equitable representation of historically disadvantaged groups particularly women and disabled persons. |
| (f) | There must be active promotion of diversity awareness. |
| (g) | A policy prohibiting hate speech must be endorsed. |
| (h) | Steps must be taken to remove existing obstacles that unfairly limit or restrict disabled persons from access to membership of and participation in professional bodies. |
