Navigating discrimination in the workplace – Employment guide

Bites Editor

6 months ago

Discrimination at work can be subtle or blatant. It can show up in hiring, pay, discipline, promotions, or daily treatment. If you handle it early and fairly, you protect people’s dignity and reduce legal risk. If you ignore it, disputes escalate quickly and can end at the CCMA or Labour Court.

Key takeaways

Discrimination can be direct or indirect, and both can be unlawful.
Harassment can count as unfair discrimination, not “workplace drama”.
Document decisions, because intent is hard to prove later.
Use a clear internal process before the dispute turns external.
Know the referral deadlines, because late cases add complexity.

What “discrimination in the workplace” means

Workplace discrimination happens when someone gets treated unfairly because of who they are. It can be direct. It can also be indirect.

Direct discrimination

This is obvious unequal treatment. For example, “We do not hire women for this role.”

Indirect discrimination

This looks neutral on paper, but it harms a protected group in practice. For example, a rule that excludes most disabled candidates without a real job reason.

Where discrimination commonly happens

Recruitment adverts, screening, and interview questions.
Pay, benefits, and bonus decisions.
Training access and development opportunities.
Promotion, demotion, and job grading.
Discipline, performance management, and selection for retrenchment.
Harassment, exclusion, and hostile workplace conduct.

The legal framework in South Africa

Several laws work together. They all aim to protect equality and dignity at work.

Employment Equity Act (EEA)

The EEA prohibits unfair discrimination in any employment policy or practice. It lists specific protected grounds. It also protects against discrimination on “arbitrary grounds”.

Constitutional equality principles

The Constitution underpins equality rights. Courts use established tests to decide whether discrimination is unfair and unjustifiable.

PEPUDA and broader equality duties

The equality legislation can apply beyond employment contexts. However, employment disputes usually rely on the EEA route first.

Harassment as discrimination

Harassment is treated as a form of unfair discrimination. This includes sexual harassment and other harassment linked to protected grounds.

Important cases and guidance that shape the rules

Unfair discrimination test guidance

Constitutional Court cases like Harksen v Lane shaped how courts test discrimination and unfairness. The impact on dignity and disadvantage matters greatly.

Discrimination based on health status

Hoffmann v South African Airways confirmed that discrimination based on HIV status can be unfair discrimination. It also stressed stigma and dignity harms.

Codes of Good Practice

Codes issued by the state give practical guidance on prevention, investigations, and remedies. They help you show that you acted reasonably.

Protected grounds and “arbitrary grounds”

The EEA lists grounds such as race, gender, sex, pregnancy, marital status, family responsibility, and age. It also lists disability, religion, language, and HIV status, among others.

The EEA also prohibits unfair discrimination on arbitrary grounds. This covers serious unfair treatment that harms dignity, even if it is not on a listed ground.

Affirmative action vs unfair discrimination

Not all differentiation is unlawful. Some differentiation is permitted, and even required.

When differentiation can be lawful

Inherent job requirements that are genuinely necessary.
Reasonable testing that is valid and fair.
Employment equity measures aimed at redress, if applied properly.

Newer Employment Equity developments to note

The Employment Equity Amendment Act commenced on 1 January 2025. It introduced a framework for sector numerical targets and updated regulations. This affects how designated employers plan and report.

However, equity measures must still be applied lawfully. Employers should avoid rigid “quotas” that ignore context and fairness.

Equal pay for work of equal value

Pay discrimination often drives disputes, because it feels personal and unfair. The EEA recognises equal pay for work of equal value as part of discrimination law.

How equal pay disputes usually work

Identify a comparator doing the same or similar work, or work of equal value.
Compare roles using objective factors, like skill, effort, responsibility, and conditions.
Test whether any pay difference is linked to a prohibited ground or unfair reason.
Assess whether the employer has a fair and rational justification.

Good reasons can exist, but you must prove them

Seniority, performance, scarcity skills, and market premiums may justify differences. However, you need evidence and consistent application.

How to handle a discrimination complaint at work

A consistent process protects complainants and protects accused employees. It also keeps your organisation credible.

Step 1: Intake and clarification

Record what happened, when it happened, and who witnessed it.
Ask what outcome the employee wants, but do not promise it.
Check if there is a safety or retaliation risk.

Step 2: Interim protection

Separate reporting lines if power dynamics are involved.
Limit contact during the investigation, where workable.
Warn against victimisation and retaliation in writing.

Step 3: Investigate fairly

Define the allegations clearly and specifically.
Collect documents, messages, and objective records early.
Interview witnesses separately and keep notes.
Give the accused a proper opportunity to respond.

Step 4: Decide and correct

Where discrimination is proven, apply corrective action and discipline if appropriate.
Where it is not proven, still address team dysfunction and repair trust.
Fix the system, because policies often cause repeat harm.

Dispute routes and time limits

Internal resolution first

Use internal grievance processes early. This often resolves disputes faster and cheaper.

Referral to the CCMA

An employee or job applicant can refer an unfair discrimination dispute for conciliation. The referral deadline is generally within six months of the act or omission.

CCMA Arbitration vs the Labour Court

After conciliation, the forum depends on the type of dispute and the employee’s earnings level. Sexual harassment disputes can be arbitrated at the CCMA. Other disputes may go to the Labour Court, unless CCMA arbitration is available or agreed.

As at 1 April 2025, the BCEA earnings threshold was R261,748.45 per year. This threshold can change over time.

What employers should do

1) Put a clear policy in place

Define discrimination, harassment, and victimisation.
Provide reporting routes beyond line management.
Set investigation steps and realistic timeframes.

2) Train managers on lawful decision-making

Most discrimination risk starts with informal decisions. Train managers on interviews, discipline, and performance management.

3) Build an evidence habit

Document recruitment criteria and interview notes.
Use consistent scoring and job-related requirements.
Record reasons for pay differences and promotions.

4) Audit pay and progression patterns

Check for patterns that disadvantage certain groups. Then fix root causes and role design.

5) Protect people from retaliation

Retaliation can be as harmful as the original act. Treat it as serious misconduct.

What employees should know

1) Keep a factual record

Note dates, words used, witnesses, and documents.
Save messages and relevant policies.
Focus on facts and impacts, not opinions.

2) Use internal channels where possible

Internal processes can resolve issues quickly. They also create a paper trail.

3) Ask for interim protections

You can ask for separation, a different reporting line, or an investigation timeline. You can also ask for support services.

4) Watch the time limits

Referral deadlines matter. If you miss them, you may need condonation, which adds risk.

Regulatory and compliance considerations

Confidentiality and information handling

Discrimination matters involve sensitive personal information. Limit access and store records securely.

Employment equity reporting

Designated employers must plan, report, and implement equity measures. Track changes from the 2025 amendments and regulations.

Financial exposure

Unfair discrimination can lead to compensation, damages, and corrective orders. It can also drive reputational harm and turnover costs.

FAQ: Discrimination in the workplace

1) Can discrimination be unintentional?

Yes. Indirect discrimination can happen without intent. The outcome and impact still matter.

2) Is it discrimination if my manager is rude to everyone?

Not always. It may be misconduct or bullying. However, if it targets a protected ground, it can be discrimination.

3) Can an employer ask about pregnancy or disability in an interview?

They should avoid personal questions unless they relate to inherent job requirements. Focus on capability and reasonable accommodation.

4) What is “reasonable accommodation”?

It means practical adjustments that help an employee work effectively, without unjustifiable hardship to the employer.

5) Can I claim unfair discrimination for unequal pay?

Yes, if you can show work of equal value and an unfair reason for the difference. Evidence and comparators matter.