Equity Legislation in South Africa with Specific Reference to HIV/Aids and Disability

Abstract

South Africa has a very advanced system of anti-discrimination legislation. In the labour law sphere, the relevant legislation includes the Employment Equity Act of 1998, the Labour Relations Act of 1995 and, of course, the Constitution of 1996. This article focuses on two prohibited grounds of discrimination, namely disability and HIV/Aids. HIV/Aids is nearing epidemic proportions in South Africa and its impact on individuals, the economy as well as the general prosperity of the country cannot be denied. Disabled persons constitute one of the designated groups, for purposes of affirmative action, in terms of the Employment Equity Act. Although both direct and indirect unfair discrimination is prohibited in all workplaces in South Africa, such protection has to be implemented and enforced by labour legislation and the courts. This article investigates the success achieved to date in protecting employees in workplaces from both unfair labour practices and unfair discrimination because of their HIV/Aids status or their disability. Job applicants are also protected by anti-discrimination legislation and it has become evident that the constitutional court is not hesitant to come to the assistance of this category. The case of Hoffmann v. SAA (see also Woolworths v. Whitehead) is discussed. The author comes to the conclusion that present anti-discrimination laws provide the courts with ample scope to act as guardian of employees as well as job applicants in this area of law. If the courts adopt an approach that recognises substantive equality, as the constitutional court, if not the labour court, has done, this could assist the community in refraining from unfairly discriminating against certain vulnerable groups in society. This discrimination is, after all, often based on unfounded assumptions and generalisations.