SUMMARY OF SUBMISSION WOMEN AND HUMAN RIGHTS PROJECT COMMUNITY LAW CENTRE UNIVERSITY OF THE WESTERN CAPE
This submission deals primarily with Chapter II of the Bill, dealing with unfair discrimination. The submission focuses on the implications of the Bill for women and makes certain proposals in this regard.

The submission explores the relationship between this Bill, the Constitution and the Labour Relations Act of 1995 and the proposed equality legislation that is currently being drafted by the Human Rights Commission and the Department of Justice. The equality legislation is constitutionally mandated. It will prohibit unfair discrimination in various sectors, e.g. accommodation and goods and services. We hope that the equality legislation will go further than just prohibiting discrimination and will place obligations on the public and private sector to ensure that inequality in our society is eradicated.

We suggest that the relationship between the unfair discrimination section in the Bill(Chapter II) and the proposed equality legislation needs to be carefully considered. In our submission, we propose:

I certain amendments to the anti discrimination section of the Bill, II that detailed provisions concerning discrimination in the employment sector should be included in the equality legislation, and III when these are enacted, the provisions in the Employment Equity Act should be amended accordingly.

Draft formulations of the various proposed amendments are annexed to the submission.

The constitutional equality guarantee

The submission includes an analysis of the constitutional equality provision and judgements concerning equality. It concludes that the constitutional equality guarantee is meant in its fullest and most substantive sense, to provide people with real equality in their lives. It provides for equality of outcomes, not just equality of opportunity. In order to achieve equality of outcomes, we have to recognise the systemic inequality in our society. It is often necessary to treat different groups differently, in order to accommodate their needs and disadvantaged socio-economic status. The general approach of the Bill is one that recognises substantive equality but there are areas in the Bill where this needs to be taken further.

The submission explores why it is necessary to legislate anti-discrimination provisions if we have a constitutional substantive equality guarantee. It highlights the limitations of constitutional court cases, particularly for poor people who suffer disadvantage. These cases are costly and time consuming, courts are inaccessible forums for the most disadvantaged groups in our society and the remedies that a court may provide do not necessarily improve the life of an individual litigant. For example, the Constitutional Court is unlikely to order the reinstatement of an individual. Therefore we argue that it is important to provide simple and effective procedures in discrimination cases, and that legislation is necessary to define the specific rights that employees have in the employment context.

Definitions of Discrimination The Bill does not define discrimination in any detail, it merely states that both direct and indirect discrimination are prohibited. A person unfairly discriminates directly against an employee if they treat him/her less favourably on the basis of one or more of the prohibited grounds, e.g. they discriminate against a woman if they treat her less favourably on the ground of her sex than they treat or would treat a man. In the employment context, an employee suffers indirect discrimination if an employment policy or practice, while neutral on its face, has a disproportionate, adverse impact on employees who belong to a group of persons who are identified by a prohibited ground of discrimination.

It is generally accepted that plaintiffs bringing discrimination cases encounter difficulties of proof. In alleging indirect discrimination, there are numerous difficulties in identifying the comparator, gathering research material and statistics. In South Africa, limited current research exists about women or men in a particular industry or employment sector. This research is difficult and expensive to conduct. Most women and other members of disadvantaged groups will not be able to afford to conduct research to produce sufficient proof and will therefore fail to discharge the onus in claims concerning indirect discrimination. People who belong to more than one group of persons identified by a prohibited ground of discrimination e.g. black disabled women have even greater difficulty identifying a comparator and proving their case.

Because of the difficulties that women and other people from disadvantaged groups face, it has been suggested that the onus to prove indirect discrimination should be similar to that in the Australian Sex Discrimination Act so that people who have suffered discrimination are able to discharge the onus without conducting expensive statistical research.

If the prohibition on unfair discrimination is to be meaningful for disadvantaged groups, the problems of proof need to be addressed. We propose that a formulation be included which includes a reasonable onus in indirect discrimination cases.

We propose that indirect discrimination should be defined in the Act in Section 6(2) as follows:
For the purposes of this Act, a person (the `discriminator') discriminates unfairly against an employee(the `aggrieved person') on one or more of the prohibited grounds if the discriminator imposes or proposes to impose an employment policy or practice that has, or is likely to have, the effect of disadvantaging a group of persons who are identified by a prohibited ground of discrimination in terms of subsection 1 and of whom the aggrieved person is a member.

Reasonable Accommodation
The submission argues that another critical measure to advance substantive equality in the Bill, is the inclusion of mandatory positive measures as an aspect of the prohibition against unfair discrimination. Positive measures such as adjustments or modifications to the work environment, reassignment of duties etc. may be required in order to withstand an unfair discrimination challenge. In Canada, these measures are usually described as the duty of reasonable accommodation. An example of reasonable accommodation in the sphere of pregnancy includes adapting work and break schedules to accommodate the special needs of pregnant employees. Reasonable accommodation is usually incorporated in the form of a requirement which employers must comply with in order to defend themselves successfully against a discrimination challenge.

Reasonable accommodation is defined in the Bill to mean " any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment."

In its present form, the Bill only includes reasonable accommodation in relation to Chapter III, dealing with Employment Equity Plans. The submission argues that it is important that reasonable accommodation is also included in the section dealing with the prohibition on discrimination.

An appropriate model of a reasonable accommodation requirement is that which expressly defines discrimination to include a failure to make reasonable accommodation. An example is provided in the Manitoba Human Rights Code.

It is suggested that the following sections are included in the Bill:
Definition:
"reasonable accommodation" when referred to in chapter III means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. When referred to in chapter II, it means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable any person from a group of persons who are identified by a prohibited ground of discrimination in section 6(1) to have access to or participate or advance in employment.

6 Prohibition on discrimination

s 6 (3) Unfair discrimination includes:

(a) the failure to make reasonable accommodation.

It is also necessary to define the standard of reasonable accommodation applied to employers in the Bill. The Ontario Human Rights Code sets out a mechanism for adjudicating bodies to determine this.

We propose that a similar provision should be included in the Bill setting out the required standard:

s 6 (3) (a)(I)) There may be no finding that an employer has failed to make reasonable accommodation unless the adjudicating body is satisfied that the needs of the groups of which the person is a member cannot be accommodated without undue hardship on the employer responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements and any other relevant factor.

It is also suggested that the Commission for Employment Equity should issue a code of good practice or regulations including guidelines which list more detailed factors relevant to the determination of `undue hardship'. The results of `balancing these factors against the rights of the employee to be free from discrimination will necessarily vary from case to case.'

Inherent requirements of the job
The Bill states that "it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of a job." Inherent requirements may be raised by an employer as a defense to an unfair discrimination challenge on any one of the prohibited grounds.

The submission questions whether all the listed grounds of discrimination can give rise to a defense of inherent requirements, particularly race. In many, countries such as the United States race is excluded from this defense. Does one, for example, require race for reasons of dramatic authenticity? This aspect requires careful consideration.

The submission points out the difficulties of the present formulation and suggests that the section should include a reference to a particular job, as this defense can only be raised in regard to a particular job in terms of the LRA and the ILO definition. It proposes the section should read:
"it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of a particular job."

In addition the submission identifies the particular problems that women suffer when this defense is interpreted too broadly. Although anti-discrimination provisions are aimed at prohibiting the disadvantage caused to women (and men) by sexual stereotyping, the `inherent requirement' defense may well be used to persist in disadvantaging women because of stereotypes.

This defense can undermine the purpose of anti-discrimination legislation. This is not likely to happen where the only defense allowed is based on biological sexual characteristics as a necessary employment qualification. Permitting the defense in any circumstances where it is based on socialized differences between men and women may result in perpetuating stereotypes."

It is suggested that because most cases will be dealt with by the CCMA and not the Labour Court, that it is important to set out the limits of this defense in the Bill. We identify the areas where such a defense may be appropriate to sex discrimination

There are certain jobs which are required to be performed by a man or a woman purely for biological reasons. Examples include a strip tease artist, a wet nurse, sperm donor, model and an escort. Typically the defense based on biology does not include attributes of strength or stamina. Another common defense is in relation to dramatic performances or other entertainment for reasons of authenticity. There is a further defense based on notions of privacy or decency.

It is suggested that the draft clauses prepared by the UCT Caucus on Law and Gender be considered. It provides a very narrow, clear list of inherent requirements with an exemption clause as follows:

"Sex may, but will not necessarily be, an inherent requirement of a particular job when:
(a) the duties of the position involve performing in a dramatic performances or other entertainment in a role that, for reasons of authenticity, is required to be performed by a person of the relevant sex;

(b) the primary duties of the person need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothes for persons of that sex;

(c) the primary duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex ;or

(d) the occupant of the position is required to enter a toilet ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex.

An employer may approach the Commission for Employment Equity for a declaration that sex is an inherent requirement of a particular job which is not covered by one of the above grounds. Harassment and Sexual Harassment

The submission highlights the concern that cases involving harassment (including sexual harassment) will be dealt with under the LRA, and that the Code dealing with sexual harassment will be appended to the LRA.

There is a concern that some victims of sexual harassment will be left without a remedy, Currently, sexual harassment claims generally can be brought in terms of the residual unfair labour practice jurisdiction of the LRA. Sexual harassment claims that result in an unfair dismissal can be brought under the chapter of the LRA dealing with automatically unfair dismissals. However, the unfair labour practice jurisdiction will be repealed by the Bill. The Code on Sexual Harassment will be appended to the LRA. The Code however is a guide for employers. Employers are not obliged to implement the Code. The Code provides for a dispute resolution mechanism to the CCMA and the Labour Court, however this is not legally enforceable as a Code is only of persuasive value. In practice, this appears to mean that claimants bringing sexual harassment claims that do not involve an unfair dismissal do not have a remedy.

In order to deal effectively with sexual harassment, multi-pronged legal strategies are required. It is important to provide strong individualised remedies for individuals who are subjected to sexual harassment coupled with measures in the workplace to prevent sexual harassment. It is not readily apparent why the Bill proposes that sexual harassment be dealt with in terms of the LRA and the Code to be appended to the LRA. The initial draft of the Bill provided for the Code to be appended to the Bill.

The structure of this Bill allows for a complementary, two pronged approach to sexual harassment. A strong individualised remedy could be provided for in the Chapter on Unfair Discrimination and the guidelines developed in the Code could be built into the other chapters in the Bill as measures which employers must take to ensure equity in the workplace.

To place the remedies for harassment under the LRA detracts from an understanding of sexual harassment as a form of unfair discrimination.

We propose that section 10(2) of the Bill should be amended by deleting "other than an allegation of harassment" and that section 10(3) should be deleted in its entirety.

Equal pay
The submission highlights that failure to pay equal remuneration for work of equal value is a form of discrimination. It is appropriate that a provision to this effect should be linked to the general prohibition on discrimination. The inclusion of an equal pay provision in Chapter II will allow courts to consider the body of precedent in other countries dealing with equal pay as an instance of discrimination.

The submission highlights the problem of enforcing pay equity not only in relation to the situation where a woman performs the same work as a man, but is paid less but also discrimination which typically operates at a less obvious, less pervasive level-especially in the context of job evaluation. Certain jobs (such as nursing, secretarial work, child care work, domestic work, etc) or certain types of skills(such as communication skills, empathetic skills, domestic skills) as `feminine' or 'women's work'. These are dominated by women workers and underpaid in comparison to similar occupations that require similar skills.

It is therefore important for the bill to guarantee equal remuneration for work of equal value. It is also important for the Bill, codes of good practice or regulations to lay down guidelines to assist the court in determining what constitutes work of equal value.

The present provision in the Bill states that employers must address wage disparities through collective bargaining. However, "collective bargaining arrangements may reflect and perpetuate gender inequality and agreements which are collectively reached may disadvantage women.'

We propose that a clause is included which states:
(4) Unfair discrimination includes a failure to pay equal remuneration for work of equal value.

Assessment of Compliance
Section 41 sets out the factors which the Director General or any person or body applying the Act must take into account in determining whether a designated employer is implementing employment equity. This includes "the demographic profile of the national and regional economically active population"

Limiting the demographic profile to the economically active sector is problematic. Many women work in the informal sector and are often disproportionately under-represented in employment statistics. By applying this qualifier, we risk that the status quo in regard to employment patterns will be entrenched. We suggest that " economically active" is deleted in this section.

Definitions
We have proposed above that the definition section should be amended to include a definition of reasonable accommodation. In addition we propose that the definition of pregnancy should be amended. In other jurisdictions, pregnancy has been defined to include potential pregnancy, which recognises the stereotyping that women experience as a result of their reproductive capacity.

We propose that a definition of pregnancy in included as follows:
Pregnancy includes any circumstance related to pregnancy, the termination of a pregnancy (including but not limited to birth, miscarriage or still birth), or potential pregnancy which includes a reference to:
(a) the fact that the woman is or may be capable of bearing children; or (b) the fact that the woman has expressed a desire to become pregnant; or (c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.

The definition of family responsibility does not include same sex partnerships. We support the inclusion of same sex partners and the definition of partner as proposed by the Employment Equity Alliance:

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support."

"partner" means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.

In addition, we propose that immediate family and children should be defined to include a notion of the extended family.

"dependant children" means any children who are wholly or substantially dependant on the employee

"immediate family" means an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse or partner of the employee or any other family member who is wholly or substantially dependant on the employee

ANNEXURE A
SUGGESTED AMENDMENTS TO THE BILL:

Definition:
"reasonable accommodation" when referred to in chapter III means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. When referred to in chapter II, it means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable any person from a group of persons who are identified by a prohibited ground of discrimination in section 6(1) to have access to or participate or advance in employment.

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support."

"partner" means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.

"dependant children" means any children who are wholly or substantially dependant on the employee

"immediate family" means an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse or partner of the employee or any other family member who is wholly or substantially dependant on the employee

Prohibition of unfair discrimination
6(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language and birth.

(2)For the purposes of this Act, a person (the `discriminator') discriminates unfairly against an employee(the `aggrieved person') on one or more of the prohibited grounds if the discriminator imposes or proposes to impose an employment policy or practice that has, or is likely to have, the effect of disadvantaging a group of persons who are identified by a prohibited ground of discrimination in terms of subsection 1 and of whom the aggrieved person is a member.
s 6 (3) Unfair discrimination includes:

(a) the failure to make reasonable accommodation.

(i) An employer fails to make reasonable accommodation unless the adjudicating body is satisfied that the needs of the groups of which the person is a member cannot be accommodated without undue hardship on the employer responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements and any other relevant factor.

(b) the failure to pay equal remuneration for work of equal value.

(5) (a) It is not unfair discrimination to -
(i) take affirmative action measures consistent with the purpose of this Act, or
(ii) distinguish, exclude or prefer any person on the basis of an inherent requirement of a particular job.

(b) "Sex may, but will not necessarily be, an inherent requirement of a particular job when:

(i) the duties of the position involve performing in a dramatic performances or other entertainment in a role that, for reasons of authenticity, is required to be performed by a person of the relevant sex;

(ii) the primary duties of the person need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothes for persons of that sex;

(iii) the primary duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex ;or

(iv) the occupant of the position is required to enter a toilet ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex.

(c ) An employer may approach the Commission for Employment Equity for a declaration that sex is an inherent requirement of a particular job which is not included subsections(I) to (iv).

Disputes concerning this Chapter 10(2) Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.

Assessment of Compliance
41 (b) the extent to which people who belong to more than one designated group are equitably represented in relation to the items set out in S41(a) (I) - (v)"

(e)The extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from one and more than one designated group;

THE EMPLOYMENT EQUITY BILL
Submission to the Portfolio Committee on Labour on behalf of Community Law Centre Women and Human Rights Project, University of the Western Cape

1998-07-15

Introduction
The Employment Equity Bill (hereafter called the Bill) aims to achieve equity in the workplace by:

* promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination and

* implementing positive measures to redress the disadvantages in employment experienced by black people, women and people with disabilities in order to ensure their equitable representation in occupational categories and levels in the workforce.

This submission will deal primarily with the Unfair Discrimination Chapter of the Bill. The submission will focus on the gender implications of the Bill and make certain proposals in this regard.

In South Africa there are currently anti discrimination provisions contained in the Labour Relations Act of 1995. (LRA). These provisions are contained in the Residual Unfair
Labour Practice Jurisdiction and the provisions in relation to Automatically Unfair Dismissals. At the time of enacting the LRA it was anticipated that general and detailed discrimination provisions would be included in broad anti-discrimination legislation.

Many jurisdictions have enacted anti-discrimination laws, prohibiting discrimination in areas such as employment, education and the provisions of goods and services.

The South African Constitution provides that national legislation must be enacted to prevent or prohibit unfair discrimination. The Human Rights Commission and the
Department of Justice have established a drafting unit to develop draft equality or anti-discrimination legislation. It is anticipated that the legislation will include many sectors, as in other jurisdictions.

The Employment Equity Bill also contains measures which prohibit unfair discrimination in the employment sector. The relationship between the unfair discrimination section in the Bill and the proposed equality legislation needs to be carefully considered. In our submission, we propose:
(i) certain amendments to the anti discrimination section of the Bill,
(ii) that detailed provisions concerning discrimination in the employment sector should be included in the equality legislation, and
(iii) when these are enacted, the provisions in the Employment Equity Act should be amended accordingly.

Draft formulations of the various proposed amendments are annexed to the submission as Annexure "A".

Anti discrimination measures and substantive equality Section 9 of the Constitution of the Republic of South Africa Act 106 of 1997 provides that:

9(1) Everyone is equal before the law and has the right to enjoy equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment 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 discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Equality is one of the foundational values of the Constitution. The Constitution embraces a substantive understanding of equality as opposed to formal equality. It focuses not only on equality of opportunity but on equality of outcomes.

Formal equality is about equality of treatment. It requires similar treatment of similarly situated people. It focuses on individuals and ignores the disadvantage that women, black people and other disadvantaged groups suffer as a group.

The problem with formal equality is that is does not recognise systemic inequality. It assumes that people to whom it applies all have the same opportunities and advantages. It ignores the actual social and economic conditions of disadvantaged groups and may in fact perpetuate disadvantage.

Formal equality relies on a comparator which is often male, white and middle class with limited domestic responsibilities.

This approach does not benefit women. It does not take into account that women often need to be treated differently to men to achieve equality. Men for example do not fall pregnant and in the employment sphere, women require different treatment to men on this basis to ensure equality of outcome, not equality of treatment.

Women have suffered from systemic discrimination which requires special measures to ensure that women enjoy substantive equality.

The Constitutional Court has endorsed a substantive understanding of equality, in Brink v Kitshoff, a case dealing with sex or gender discrimination. The court decided that the main purpose of the equality clause is to remedy systemic patterns of disadvantage based on race and gender. The judgement specifically acknowledges that the entrenched patterns of disadvantage caused by sex and gender discrimination in this country manifest most acutely in the case of black women.

In cases relating to unfair discrimination, the Labour Court seems to have followed the same approach.

Equality has two aspects, anti-discrimination measures(or the prohibition on discrimination) and positive measures. Anti-discrimination measures can advance substantive equality, as do positive measures. For example, the prohibition on indirect discrimination in the Bill is a means of advancing substantive equality. The inclusion of this prohibition acknowledges for example that there are certain employment policies and practices which while neutral on their face as between men and women, have a disproportionate, adverse impact on women which cannot be justified.

In the Bill, positive measures are contained in chapter III, which deals with affirmative action. This provides a framework to implement affirmative action measures. Section 6(1) of the bill provides that:

It is not unfair discrimination to take any affirmative action measures consistent with the purposes of this Act.

This is a further indication of the substantive nature of the equality guarantee of the Bill and the Constitution, that affirmative action measures are part and parcel of equality.

Why are anti-discrimination provisions necessary if we have a constitutional substantive equality guarantee?

The Bill of Rights applies both vertically and horizontally, it is applicable against the state and private institutions and individuals. However, an individual who has had their constitutional rights violated often has to seek redress through the courts. The limitations of court processes and particularly constitutional cases are manifold. A litigant has to exhaust all other remedies before approaching the Constitutional Court. Litigation is costly and time consuming. Courts are often inaccessible forums for the most disadvantaged groups in our society. The remedies that a court may provide do not necessarily improve the life of an individual litigant. For example, the Constitutional Court is unlikely to order the reinstatement of an individual.

In order to give meaningful effect to the substantive equality guarantee in the Constitution, section 9(4) provides that national legislation must be enacted to prevent or prohibit unfair discrimination. Section 23(1) of Schedule 6 of the Constitution provides that the legislation referred to in section 9(4) must be enacted within three years of the date on which the new Constitution took effect.

There are many advantages to enacting anti-discrimination provisions in different sectors. They include legal certainty, as legislation will provide detail in terms of limitations and remedies that the Constitution does not. Legislation will hopefully provide more accessible and less costly means of dealing with discrimination cases.
Legislation also has an educational function as it sets out concrete examples of unfair discrimination.

The detail is likely to include exceptions to the prohibition on unfair discrimination. For example, the genuine occupational requirements or inherent requirements of the job.

The provisions of the Employment Equity Bill

Section 6 - Prohibition of Unfair Discrimination Section 6(1) of the Bill repeats the prohibited grounds of unfair discrimination set out in section 9(3) of the Constitution. Family responsibility has been added to this list, which is drawn from an ILO convention, which has been ratified by South Africa.

When considering the prohibition of unfair discrimination in the bill set out in section 6, other relevant provisions of the Constitution need to be considered, particularly section
36, which deals with the limitation of rights. It is also useful to conduct a comparative analysis of how other countries have dealt with prohibitions on discrimination in similar legislation.

Definitions of Discrimination
The Bill does not define discrimination in any detail, it merely states that both direct and indirect discrimination are prohibited. A person unfairly discriminates directly against an employee if they treat him/her less favourably on the basis of one or more of the prohibited grounds, e.g. they discriminate against a woman if they treat her less favourably on the ground of her sex than they treat or would treat a man. In the employment context, an employee suffers indirect discrimination if an employment policy or practice, while neutral on its face, has a disproportionate, adverse impact on employees which is discriminatory upon one of the prohibited grounds and cannot be justified.

Certain countries such as the United Kingdom and Australia, discrimination is defined in a detailed manner, including direct and indirect discrimination.

The Australian Sex Discrimination Act of 1984 defines indirect discrimination as:

For the purposes of this Act, a person (the "discriminator") discriminates against another person (the "aggrieved person" ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

The Australian test for proving indirect discrimination requires proof of a practice that has, or is likely to have, the effect of disadvantaging a person on the basis of their sex. On the other hand, the English Sex Discrimination Act requires that the aggrieved person show that the practice is such that the proportion of women who can comply with the practice is considerably smaller than the proportion of men. It appears that the onus of proof in both formulations rests with the aggrieved person, however the English Act requires a higher burden of proof as complainants are often required to produce statistical evidence to show the proportion of women as opposed to men who can comply with a practice.

There are also countries which have very general definitions of discrimination and leave the interpretation thereof to tribunals, commissions and courts. The advantage of including a definition of discrimination is that complainants, tribunals and courts are given guidance on what standard of proof is required, particularly in cases involving indirect discrimination.

It is generally accepted that plaintiffs bringing discrimination cases encounter difficulties of proof. In alleging indirect discrimination, there are numerous difficulties in identifying the comparator, gathering research material and statistics. In South Africa, limited current research exists about women or men in a particular industry or employment sector. This research is difficult and expensive to conduct. Most women and other members of disadvantaged groups will not be able to afford to conduct research to produce sufficient proof and will therefore fail to discharge the onus in claims concerning indirect discrimination.

Because of the difficulties that women and other people from disadvantaged groups face, it has been suggested that the onus to prove indirect discrimination should be similar to that in the Australian Sex Discrimination Act so that people who have suffered discrimination are able to discharge the onus without conducting expensive statistical research.

If the prohibition on unfair discrimination is to be meaningful for disadvantaged groups, the problems of proof need to be addressed. We propose that a formulation be included which includes a reasonable onus in indirect discrimination cases.

We propose that indirect discrimination is defined in the Act. Section 6(2) should read that:

For the purposes of this Act, a person (the `discriminator') discriminates unfairly against an employee(the `aggrieved person') on one or more of the prohibited grounds if the discriminator imposes or proposes to impose an employment policy or practice that has, or is likely to have, the effect of disadvantaging a group of persons who are identified by a prohibited ground of discrimination in terms of subsection 1 and of whom the aggrieved person is a member.

Reasonable Accommodation
Another critical measure to advance substantive equality in the Bill, is the inclusion of mandatory positive measures as an aspect of the prohibition against unfair discrimination. Positive measures such as adjustments or modifications to the work environment, reassignment of duties etc. may be required in order to withstand an unfair discrimination challenge. In Canada, these measures are usually described as the duty of reasonable accommodation. An example of reasonable accommodation in the sphere of pregnancy includes adapting work and break schedules to accommodate the special needs of pregnant employees. Reasonable accommodation is usually incorporated in the form of a requirement which employers must comply with in order to defend themselves successfully against a discrimination challenge.

Reasonable accommodation is defined in the Bill to mean " any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment."

In its present form, the Bill only includes reasonable accommodation in relation to Chapter III dealing with Employment Equity Plans. It is important that reasonable
accommodation is also included in the section dealing with the prohibition on discrimination.

An appropriate model of a reasonable accommodation requirement is that which expressly defines discrimination to include a failure to make reasonable accommodation. An example is provided in the Manitoba Human Rights Code.

It is suggested that the following sections are included in the Bill:

Definition:
"reasonable accommodation" when referred to in chapter III means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. When referred to in chapter II, it means any modification or adjustment to a job, to the terms and conditions of employment or to the working environment that will enable any person from a group of persons who are identified by a prohibited ground of discrimination in section 6(1) to have access to or participate or advance in employment.

s 6 (3) Unfair discrimination includes:

(a) the failure to make reasonable accommodation.

It is also necessary to define the standard of reasonable accommodation applied to employers in the Bill. The Ontario Human Rights Code sets out a mechanism for adjudicating bodies to determine this.

We propose that a similar provision should be included in the Bill setting out the required standard:
s 6 (3) (a)(I)) There may be no finding that an employer has failed to make reasonable accommodation unless the adjudicating body is satisfied that the needs of the groups of which the person is a member cannot be accommodated without undue hardship on the employer responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements and any other relevant factor.
It is also suggested that the Commission for Employment Equity should issue a code of good practice or regulations including guidelines which list more detailed factors
relevant to the determination of `undue hardship'. The results of `balancing these factors against the rights of the employee to be free from discrimination will necessarily vary from case to case. '

Limitations to the prohibition on discrimination

Section 36 of the Constitution provides that:
36(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity; equality and freedom, taking into account all relevant factors including-
(a) the nature of the right;
(b) the importance and purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

Section 5(2)(b) of the Bill sets out one of the limitations to the prohibition of unfair discrimination, namely that it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of the job. However, there may be limitations and justifications to the prohibition such as profit or harm to business, that are not detailed in the legislation.

The legislation leaves the complex issue of justifiable limitations to the CCMA and the Labour Court. We propose that the legislation should set out the degree of importance attached to eliminating indirect discrimination and how to balance the discriminatory effect of a policy or practice against the justifications for imposing it.

Inherent requirements of the job
The Bill states that "it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of a job." In most of the comparative anti-discrimination statutes there is some type of defense to discrimination in the employment sphere, based on the inherent requirements of the job, or genuine occupational requirements (also referred to as bona fide occupational requirements).

An aspect for consideration is whether all the listed grounds of discrimination can give rise to a defense of inherent requirements, particularly race. In many countries such as the United States, race is excluded from this defense. Does one, for example, require race for reasons of dramatic authenticity? This aspect requires careful consideration.

This defense needs to be carefully scrutinised in regard to sex . This defense means that employers admit that discrimination has taken place but argue that it is justified because sex is a genuine occupational requirement. (GOR)

O'Regan points out, however, that "there is a central difficulty with this defense: discrimination legislation is aimed at prohibiting the disadvantage caused to women ( and men) by sexual stereotyping. The genuine occupational requirement defense may well be used to persist in disadvantaging women because of stereotypes.

Unless a court is willing to consider the individual qualities of the women concerned and the possibility of restructuring the workplace in ways that will permit women to participate more fully this defense will undermine the purpose of anti-discrimination legislation. This is not likely to happen where the only defense allowed is based on biological sexual characteristics as a necessary employment qualification. Permitting the defense in any circumstances where it is based on socialized differences between men and women may result in perpetuating stereotypes."

It is important to define "the inherent requirements of a job" in the Bill, particularly to ensure that women are not excluded from sectors of the labour market. This will facilitate the educational function of the Bill and provide clarity for employers and employees who are not necessarily aware of court judgements whereas they are likely to have knowledge of the provisions of the act. All judges may also not interpret the legislation in the same way. Many of the cases will also be heard by commissioners from the Commission for Conciliation, Mediation and Arbitration. (CCMA) The expertise of the various commissioners is uneven.

There are various comparative examples in relation to this defense to unfair discrimination. In America the relevant provision of the legislation is open textured and does not contain a specific list of circumstances constituting genuine occupational requirements. The provision states that : "it shall not be an unlawful employment practice....in those certain instances where religion, sex or national origin is a bone fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."

The British Act contains an exhaustive list of circumstances (which may not be expanded) where genuine occupational requirements exist. The list includes circumstances that go beyond mere biology to include functional and socialized
differences.

The Australian legislation also contains a list, narrower than that of Britain. The list can however be expanded where a regulation declares a certain position to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex.

If it is desirable to include a list of occupations where sex is a genuine occupational requirement, the question is how exhaustive the list should be and whether it should be a closed list, an open ended list or a closed list which provides for a mechanism of applying for an exemption in certain circumstances.

Bearing in mind that the purpose of the legislation is to limit discrimination as much as possible it would be preferable to have as narrow a list as possible, if the list option is followed. To ensure fairness a provision could be included which allows applications for exemption.

Comparative examples indicate that there are certain jobs which are required to be performed by a man or a woman purely for biological reasons. Examples include a strip tease artist, a wet nurse, sperm donor, model and an escort. Typically the defense based on biology does not include attributes of strength or stamina.

Another common defense is in relation to dramatic performances or other entertainment for reasons of authenticity. Although this exception seems self evident and unproblematic, Pannick comments that in Shakespearean plays women's parts were originally frequently played by boys and those were accepted as authentic performances. There is a further defense based on notions of privacy or decency. Some examples drawn from case law illustrate this defense:

* In relation to a menswear shop, a court held that it was not a GOR for a man to be the shop assistant because when it came to the taking male leg measurements for
trousers, one of the other male assistants in the shop could do the job.

* In another cases involving clothes fitting however a tribunal held that sex was a GOR for the job of selling dresses in a shop, because it was likely that there would be physical contact in the course of trying on and fitting on dresses.

* In a USA case it was held that being a female was a GOR for the job of labour or delivery nurse in the obstetrics department of the hospital, because there are few duties in relation to obstetrics which are not sensitive or intimate.

The important aspect of the decency and privacy provisions is to link the requirement with the actual duties of the job. This limits the application of the defense.

There are other examples of defenses based on occupational requirements, most of which move even further away from physiological differences towards socialized constructions.

It is suggested that the draft clauses prepared by the UCT Caucus on Law and Gender be considered. It provides a very narrow, clear list of inherent requirements with an exemption clause broadly as follows:

"Sex may, but will not necessarily be, an inherent requirement of a particular job when:

(a) the duties of the position involve performing in a dramatic performances or other entertainment in a role that, for reasons of authenticity, is required to be performed by a person of the relevant sex;

(b) the primary duties of the person need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothes for persons of that sex;

(c) the primary duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex ;or

(d) the occupant of the position is required to enter a toilet ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex.

An employer may approach the Commission for Employment Equity for a declaration that sex is an inherent requirement of a particular job which is not covered by one of the above grounds.

Should the option of including a list not be followed; it is suggested that the existing clause be amended. The clause is drawn from the ILO Convention which provides :"Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination"

The LRA currently has a similar provision which will be repealed by the bill: "any discrimination based on an inherent requirement of the particular job does not
constitute unfair discrimination."

The current LRA provision is preferable to that contained in the Bill because it links the inherent requirement to that particular job, which provides less room for stereotyped assumptions.

In relation to defenses to unfair discrimination, it must be borne in mind that there is often a need to restructure the workplace to accommodate women and other disadvantaged groups as set out by O'Regan.

In the chapter on Affirmative action, the bill provides that affirmative action measures must include making reasonable accommodation of people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of the designated employer. This is in addition to the provisions that we earlier proposed to be included in the Chapter on Unfair Discrimination.

In relation to occupational requirements reasonable accommodation often practically involves the re allocation of duties of employees.

Recommendations concerning the anti-discrimination provisions in the bill

The equality legislation which is currently being drafted by the HRC is likely to provide detailed definitions of discrimination as well as exceptions to the prohibition on
discrimination. We propose that Chapter II of the Bill, dealing with the prohibition on unfair discrimination in the Bill is amended to:

1. include a definition of indirect discrimination;
2. include a provision dealing with reasonable accommodation;
3. include a provision setting out the limits of a GOR; and limiting this to gender and biology.

Further, we propose that these provisions in the Bill are generally amended in line with the Equality Act while this is being drafted and when it is passed.

Sexual harassment
In relation to sexual harassment, the bill provides that:

"Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of the grounds of unfair discrimination listed."

In terms of section 10(2) of the Bill a dispute concerning harassment must be dealt with in terms of the relevant provisions of the LRA, while all other disputes concerning discrimination are dealt with in terms of the Bill . It is intended that the Code of Good Practice on Sexual Harassment developed at NEDLAC will be appended as a schedule to the LRA. The Code defines sexual harassment, details who the Code applies to, sets out guiding principles for employers, provides suggested policy guidelines for employers, as well as suggested procedures to deal with harassment. It is however not mandatory for employers to implement the policies and guidelines.

There is a concern that some victims of sexual harassment will be left without a remedy, Currently, sexual harassment claims generally can be brought in terms of the residual unfair labour practice jurisdiction of the LRA. Sexual harassment claims that result in an unfair dismissal can be brought under the chapter of the LRA dealing with automatically unfair dismissals. However, the unfair labour practice jurisdiction will be repealed by the Bill. The Code on Sexual Harassment will be appended to the LRA. The Code however is a guide for employers. Employers are not obliged to implement the Code. The Code provides for a dispute resolution mechanism to the CCMA and the Labour Court, however this is not legally enforceable as a Code is only of persuasive value. In practice, this appears to mean that claimants bringing sexual harassment claims that do not involve an unfair dismissal do not have a remedy.

In many countries, provisions relating to sexual harassment are included in anti-discrimination statutes by way of chapters which are separate to the provisions on employment.

In order to deal effectively with sexual harassment, multi pronged legal strategies are required. It is important to provide strong individualised remedies coupled with measures in the workplace to prevent sexual harassment. It is not readily apparent why the Bill proposes that sexual harassment be dealt with in terms of the LRA and the Code to be appended to the LRA. The initial draft of the Bill provided for the Code to be appended to the Bill.

The structure of this Bill allows for a complementary, two pronged approach to sexual harassment. A strong individualised remedy could be provided for in the Chapter on Unfair Discrimination and the guidelines developed in the Code could be built into the other chapters in the Bill as measures which employers must take to ensure equity in the workplace.

To place the remedies for harassment under the LRA detracts from an understanding of sexual harassment as a form of unfair discrimination.

We propose that section 10(2) of the Bill should be amended by deleting "other than an allegation of harassment" and that section 10(3) should be deleted in its entirety.

This will ensure that harassment is dealt with under the Bill and not under the LRA.

Equal pay provision
The most recent amendments to the chapter on unfair discrimination provide that:

An employer must address unfair discrimination in relation to wage disparities through collective bargaining, measures provided for in the Basic Conditions of Employment Act or in any similar manner that is appropriate in the circumstances.

In addition the Bill defines an "employment policy or practice" to include remuneration.

Until this draft, the Bill did not include any provision dealing with pay equity. However, the new draft deals with it in a limited manner which merits consideration.

Failure to pay equal remuneration for work of equal value is a form of discrimination. It is appropriate that a provision to this effect should be linked to the general prohibition on discrimination. The inclusion of an equal pay provision in Chapter II will allow courts to consider the body of precedent in other countries dealing with equal pay as instance of discrimination.

"It is universally recognised among writers in this area that the crucial problem in enforcing pay equity is that the disadvantage that women experience extends far beyond the simple situation where a woman performs the same work as a man, but is paid less. Discrimination typically operates at a less obvious, less pervasive level-especially in the context of job evaluation. Our society generally regards certain jobs(such as nursing, secretarial work, child care work, domestic work, etc) or certain types of skills (such as communication skills, empathetic skills, domestic skills) as `feminine' or 'women's work'. This has two consequences:

(i) As a result of the social structure of work and working skills and the subtle pressure of stereotyping, these kinds of jobs or jobs which require these kinds of skills are typically marked by a high concentration of women workers.
(ii) Because `women's work' is undervalued and seen as less important or less taxing than `men's' work, these occupations are invariably extremely badly paid in comparison to occupations which may involve equivalent amounts of skill, danger, effort and experience, which are typically regarded as `male' occupations."

It is therefore important for the bill to guarantee equal remuneration for work of equal value. It is also important for the Bill, codes of good practice or regulations to lay down guidelines to assist the court in determining what constitutes work of equal value.

The present provision in the Bill states that employers must address wage disparities through collective bargaining. However, "collective bargaining arrangements may reflect and perpetuate gender inequality and agreements which are collectively reached may disadvantage women.'

We propose that a clause is included which states:

(4) Unfair discrimination includes a failure to pay equal remuneration for work of equal value.

Affirmative Action : intersection between designated groups Chapter III onwards of the Bill provide a framework within which designated employers must develop employment equity plans to redress the disadvantage suffered by black people, women and people with disabilities. Every designated employer must implement affirmative action measures for people from designated groups to achieve employment equity.

Black women face particular discrimination which results from the intersection of race, class and gender discrimination. American courts have held that black women must bring suits on a cause of action of either race discrimination or sex discrimination, but not a combination of both. Where black women's experience is distinct and arises out of a combination of grounds of unfair discrimination they are left with no remedy.

Experience in other countries has shown that the court's sex plus approach is flawed, as the cumulative effect of race and gender discrimination is not simply additive, and (they) urge for a more holistic approach that takes account of the historical, social and economic experience of black women as a separate group.

Black women's experience of discrimination is not merely an intensified version of that of white women. It is both similar to and different from that experienced by white women and black men. It can be the combined effects of race and sex, or the unique experience of discrimination as black women."

There is a concern that the categorization of the designated groups in the Bill does not provide for cumulative disadvantage experienced by an individual who belongs to
more than one of the designated groups.

In assessing whether an equity plan complies with the Act, there are certain factors set out in the legislation which must be taken into account.

In relation to factors to consider, it is suggested that a formulation of an additional factor to assess compliance be considered at the end of the list of factors:

"the extent to which people who belong to more than one designated group are equitably represented in relation to the items set out in S41(a) (I) - (v)"

Further consequential amendments would then be required: wherever the phrase "designated group" is used the words from one and more than one designated group must be inserted. An alternative would be to amend the definition of designated groups.

The second area of concern is the difficulty surrounding proof of discrimination which is as a result of a combination of grounds. Hopefully the case law in SA will develop differently to that of other countries as unfair discrimination can take place on one or more grounds, although it is not clear exactly how the courts will work with this formulation.

Chapter IV - Commission for Employment Equity
Section 28 sets out the composition of the Commission for Employment Equity. Earlier versions of the Bill provided specifically that women and people with disabilities would be represented on the Commission. The latest version has replaced this representation with "two people nominated by those voting members of NEDLAC who represent the organisations of community and development interests in the Development Chamber in NEDLAC". We are concerned that these representatives will not necessarily represent the interests of women and people with disabilities. It is suggested that these sectors should be specifically represented on the Commission and that an obligation should be placed on the Minister when appointing the Commission, to ensure that it is sufficiently representative of designated groups.

Assessment of Compliance
Section 41 sets out the factors which the Director General or any person or body applying the Act must take into account in determining whether a designated employer is implementing employment equity.

Section 41(a) sets out factors by which to determine whether suitably qualified people from designated groups are equitably represented within each occupational category.
These include:

"the demographic profile of the national and regional economically active population"

Limiting the demographic profile to the economically active sector is problematic. Many women work in the informal sector and are often disproportionately under represented in employment statistics. By applying this qualifier, we risk that the status quo in regard to employment patterns will be entrenched. We suggest that " economically active" is deleted in this section.

Definitions
We have proposed above that the definition section should be amended to include a definition of reasonable accommodation. In addition we propose that the definition of pregnancy should be amended. In other jurisdictions, pregnancy has been defined to include potential pregnancy, which recognises the stereotyping that women experience as a result of their reproductive capacity.

We propose that a definition of pregnancy in included as follows:

Pregnancy includes any circumstance related to pregnancy, the termination of a pregnancy (including but not limited to birth, miscarriage or still birth), or potential pregnancy which includes a reference to:

(a) the fact that the woman is or may be capable of bearing children; or
(b) the fact that the woman has expressed a desire to become pregnant; or
(c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.

The definition of family responsibility does not include same sex partnerships. We support the inclusion of same sex partners and the definition of partner as proposed by the Employment Equity Alliance:

"family responsibility" means the responsibility of employees in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support."

"partner" means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.

In addition, we propose that immediate family and children should be defined to include a notion of the extended family.

"dependant children" means any children who are wholly or substantially dependant on the employee

"immediate family" means an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse or partner of the employee or any other family member who is wholly or substantially dependant on the employee.