Question

3.1.7. Differentiate between fair discrimination and unfair discrimination

Answer 1

Fair discrimination- Discrimination means treating some people differently from others. It isn't always unlawful - after all, people are paid different wages depending on their status and skills. However, there are certain reasons for which your employer can't discriminate against you by law. Discrimination happens when an employer treats one employee less favourably than others. It could mean a female employee being paid less than a male colleague for doing the same job, or an employee from a minority ethnic community being refused the training opportunities offered to other colleagues.

There are specific laws against some types of discrimination (called 'unlawful discrimination'). If your employer treats you less favourably for an unlawful reason, you may be able to take action. If your employer treats you unfairly for any other reason, this is not unlawful discrimination.

There are laws against discrimination on the basis of your:

-gender
-marriage or civil partnership
-gender reassignment
-pregnancy and maternity leave
-sexual orientation
-disability
-race
-colour
-ethnic background
-nationality
-religion or political opinion
-age

Unfair discrimination- Unfair discrimination is when you are treated differently as compared to other categories of people and that your dignity as a human being is impaired by such treatment.

Discrimination is regarded as unfair when it imposes burdens or withholds benefits or opportunities from any person on one of the prohibited grounds listed in the Act, namely: race, gender, sex, pregnancy, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth etc.

It is important to note that the Act does not prohibit discrimination but unfair discrimination.There are certain circumstances where discrimination can be regarded as fair e.g. measures designed to advance persons disadvantaged by the previous system of racial discrimination.

Cases for fair discrimination (read case)- The new amendments to the Employment Equity Act 55 of 1998 (the EEA) assist employers in defending unfair discrimination claims by enabling employers to show that the alleged unfair discrimination is justifiable. Prior to the amendment, an employer was only able to escape liability by showing that the discrimination in question was fair.