Discrimination on the basis of a criminal record in South Africa

Abstract

Section 9(3) of the South African constitution prohibits unfair direct or indirect discrimination on grounds, including ‘race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’. The Constitutional Court has interpreted section 9(3) to include analogous grounds such as marital status, citizenship and HIV status. There are many pieces of legislation or regulations in South Africa that prohibit employers from employing people with criminal records – irrespective of the lack of a nexus between the criminal record and the job in question. Invoking the test developed by the Constitutional Court on what criteria that should be met for an analogous ground, we argue that denying a person a job simply because of his criminal record amounts to unfair discrimination. We also discuss the issue of whether such discrimination could be justified on the basis of section 36 of the constitution.