New discrimination laws for South Africa could make employers liable for what their workers say or do

Reported on: 1 May 2021

Written by Geoffrey Allsop.


Draft amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act aim to provide greater protection to people who challenge unfair discrimination or who are victims of hate crimes.

The amendment Bill, published for public comment by the Department of Justice and Constitutional Development, would make significant changes to the Act.

The main purpose of the Act is to realise the constitutional right to equality so that people do not face unfair discrimination by either the state or anyone else.

The Bill proposes to amend the definition of “discrimination” to make it clear that it is not necessary for a person to act with intention before they can be found guilty of unfair discrimination.

This is in line with several Constitutional Court judgments which have found that intention is not necessary for a person to unfairly discriminate against. [sic]

A significant addition is the insertion of a provision that will make employers liable for unfair discrimination committed by their employees.

This provision does state, however, that employers will not be liable for unfair discrimination committed by their employees, if they can show they took all reasonable steps to ensure that employees do not unfairly discriminate against other people when performing their duties.

The Bill also proposes that anyone who causes, encourages or requests another person to unfairly discriminate against other people will be guilty of unfair discrimination themselves.

Several provisions aim to provide greater protection to people who challenge unfair discrimination or who are victims of hate crimes.

For instance, one provision prohibits retaliation against anyone who objects to unfair discrimination or who institutes proceedings under the Act to challenge unfair discrimination.

Another provision states that if it is shown that unfair discrimination on the grounds of race, gender or disability played a role in the commission of a crime, the unfair discrimination must be considered an aggravating factor when deciding the appropriate punishment or sentence.

The Bill also proposes that Legal Aid recommend to the Minister of Justice that regulations be published to provide funding for poor people to challenge unfair discrimination in the courts.

The Bill also fleshes out the constitutional duty of the state to promote equality and to eliminate unfair discrimination.

It proposes that state institutions have the duty to run information campaigns to make people familiar with the Act and to take measures to eliminate unfair discrimination and promote equality.

To ensure state institutions comply with these additional duties, the Bill proposes they must explain the amount of money allocated towards such measures in their annual reports.

When no funds are allocated in a financial year towards such measures, a proper explanation must be provided for why.

The ability of constitutional institutions, such as the Human Rights Commission and Public Protector, to investigate and combat unfair discrimination will also be strengthened by the Bill.

For instance, one provision will empower constitutional institutions to request information from the state or even private companies on measures they have taken to combat unfair discrimination and to promote equality. Anyone who intentionally provides false information to a constitutional institution will be guilty of an offence.

The Bill also empowers constitutional institutions to assist people to pursue discrimination claims in the equality court, to conduct investigations into cases of persistent allegations of unfair discrimination and request regular reports from any government department on the number of unfair discrimination cases they have received and their outcome.

Particularly significant is the fact that the Bill imposes further duties on private people (usually companies) and private institutions to promote equality and to combat unfair discrimination.

The Bill makes it clear that private people (not only the state) have a duty to take active steps to eliminate unfair discrimination. The Bill states such measures should place particular emphasis on ensuring that discrimination based on race, gender and disability is eliminated.

The Bill also states that any person who enters into a contract with the state must comply with any code of good practice that regulates the promotion of equality and the prevention of unfair discrimination.

This means, for example, that a private company that enters into a tender with the state to provide services must ensure that its own policies and procedures promote equality and do not unfairly discriminate against anyone.

This article first appeared on Ground Up.

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