Disability discrimination in the South African workplace: the case of infertility

Abstract

ABSTRACTInfertile employees who utilise surrogacy or adoption to expand their family need time off from work to meet their statutory parental obligations. However, South African law does not provide leave for these unique circumstances at present. The disparity in available leave to conventional and unconventional parents demonstrates differential treatment, and possibly unfair discrimination. Since infertility is not a specified ground in South African discrimination laws, an employee would have to argue discrimination on an unspecified ground which imposes a heavier burden of proof. To provide better protection to employees, it would be desirable to consider infertility as a disability – which is a specified ground. In considering relevant national laws and applicable international standards, this study aims to establish whether infertility could be regarded as a disability for purposes of the South African labour law and if so, whether it could be argued that the disparity in the provision of leave amounts to indirect disability discrimination. Should the risk of discrimination arise, it would require that a measure of reasonable accommodation be afforded to infertile employees by providing leave in surrogacy and adoption circumstances. A failure to do so could lead to a finding that unfair indirect disability discrimination occurred.