The SA Human Rights Commission (SAHRC) strongly supports a proposed bill to amend legislation aimed at promoting equality and preventing discrimination, saying certain views about the bill in the media are “misinformation”.
The SA Institute of Race Relations and the National Employers Association of SA (Neasa) have expressed opposition to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill — that proposes amendments to the definitions of equality and discrimination — which they say will have far-reaching effects on business.
The amendment bill has been released by the department of justice & constitutional development for public comment.
It proposes extending the scope of the prohibition of unfair discrimination and introducing liability for a company where this is committed by a worker, employee or agent. The intention is to make a case of discrimination easier to prove.
The definition of equality in the bill is expanded to include equal right and access to resources, opportunities, benefits and advantages and/or equality in terms of impact and outcome.
The act lists 18 prohibited grounds for discrimination: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/Aids status.
The commission, which implements the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), said it welcomed the bill particularly because it aims to bring the inoperative promotional aspects of Pepuda into effect.
“Misinterpretations of the amendment bill include alarmist sentiments expressed about the explicit inclusion of substantive equality, the amendment of the definition of discrimination, the introduction of vicarious liability for discrimination, and the revised promotional aspects,” the SAHRC said in a statement.
“From the outset, it is important to underscore that the current amendment largely clarifies the current status of our law, and more explicitly reflects our constitutional vision. ‘Intent’ is already not a requirement for discrimination or any other prohibition contained in Pepuda, while ‘substantive equality’ is already envisioned in the constitution. The amendment bill thus merely reflects the current legal and constitutional position in SA.”
With regard to the proposed addition of “equal rights and access to resources, opportunities, benefits and advantages” and “substantive equality” to the definition of equality, the commission noted that everyone already has a right in terms of the constitution to the equal enjoyment of all human rights and freedoms including economic and social rights.
“A right to equal ‘access’ to resources therefore is not a guarantee of the equal distribution of resources, opportunities and advantages, but aims to ensure that everyone has a fair chance at accessing societal goods. This language reflects the concept of ‘substantive equality’, which means treating people in different circumstances differently, to ensure a substantively equal (not perfectly equal) outcome. Substantive equality is already reflected in our constitution, and the current amendment therefore reflects our constitutional provisions.”
Regarding the amendment of the definition of “discrimination”, the SAHRC said the prohibitions of unfair discrimination, hate speech and harassment contained in Pepuda do not require “intent” as an element. This amendment therefore simply clarifies that intent is not a requirement. The introduction of a prohibition of incitement to discriminate, and the introduction of joint and several liability for discrimination, aims to offer additional protection to vulnerable groups, include race-, linguistic- and religious-minorities. In this regard, it is important to note that the provision on determining the fairness or unfairness of discrimination, contained in section 14 of Pepuda, remains as it is presently written. One of the relevant factors in section 14 is “context”, which will allow alleged perpetrators of unfair discrimination to explain why conduct was not discrimination in a particular instance.
With regard to the promotion of equality and elimination of discrimination, the commission noted that the state and public bodies will need to justify the failure to make budgetary allocations towards the elimination of discrimination and the promotion of equality, private bodies will merely need to abide with issued codes in their relationship with other bodies and in their public activities. When issuing such codes, relevant ministers will have regard to the size, resources and influence of the organisations at issue.
IRR head of policy research Anthea Jeffery said the proposed amendments could pressure companies and other entities to change the terms on which they interact with specified groups of people to avoid heavy penalties for failing to “promote equality in terms of impact and outcomes”.
Jeffery gives the example of a bank charging higher interest rates to people who pose a higher risk of default and who happen to be black. This could be interpreted as a failure to promote equality and as an act of unfair discrimination.
“The expanded definition of discrimination in the bill may make it more difficult for companies to prove that any discrimination in which they may unintentionally have engaged is not unfair,” Jeffery said in a draft paper.
She said that if the bill is enacted companies will have to eliminate discrimination, ensure equal access to resources and opportunities, and/or achieve equality of outcomes between the better off and those disadvantaged by poverty, unemployment or poor schooling.
“This would have far-reaching ramifications for the banking, education, insurance, medical aid and pension fund sectors, not to mention companies in general.
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