Abstract
This contribution considers the role of language as a prohibited ground of unfair discrimination in the workplace in South Africa, an area of law that has been somewhat neglected in the literature to date. It starts by setting out the constitutional and legislative framework for the protection of language rights and the prohibition of unfair discrimination based on language as a listed ground. It then, with brief comparative reference to other prominent jurisdictions, explains the potential ways in which an employer may unfairly discriminate against employees based on language, following which it considers the potential grounds for justification of language-based discrimination in the workplace. After consideration of the sparse case law on the topic in South Africa, it highlights a few specific issues regarding language and workplace discrimination, before concluding with some thoughts on potential future developments.
Highlights
Introduction and the legal frameworkThe Constitution of the Republic of South Africa, 1996 deals expressly and quite prominently with the recognition of languages and the protection of the choice and use of language. 1 Section 6 of the Constitution recognises 11 official languages[2] in the Republic, and contains provisions regarding the state's duties to protect the use of these languages. 3 The state's role in the protection and advancement of languages is circumscribed with the proviso that "all official languages must enjoy parity of esteem and must be treated equitably".4Apart from the provisions regarding the recognition, protection and advancement of official languages by the state, the Bill of Rights entrenches fundamental rights for individuals and groups in respect of their choice and use of language
This contribution considers the role of language as a prohibited ground of unfair discrimination in the workplace in South Africa, an area of law that has been somewhat neglected in the literature to date
In the context of "English-only" workplace policies in the United States of America (USA) it has been observed that "some employers are rightfully concerned that the workplace will become deluged with a variety of languages, thereby impeding safety, efficiency, harmony, productivity, and possibly alienate a customer base."[84] There may very well be a variety of reasons – some justifiable – for an employer to seek uniformity in respect of language usage in the workplace, but such reasons will always be subject to strict judicial scrutiny in the face of claims of unfair discrimination
Summary
The Constitution of the Republic of South Africa, 1996 (the Constitution) deals expressly and quite prominently with the recognition of languages and the protection of the choice and use of language. 1 Section 6 of the Constitution recognises 11 official languages[2] in the Republic, and contains provisions regarding the state's duties to protect (and, in respect of the indigenous languages, to advance) the use of these languages. 3 The state's role in the protection and advancement of languages is circumscribed with the proviso that "all official languages must enjoy parity of esteem and must be treated equitably".4. They impact on the rights to choose, to use and to enjoy a language (and, in the case of the first type of policy, possibly the freedom to associate with other users of that language) At this point it just bears mentioning, that the prohibition of discrimination on the basis of language in terms of the EEA and section 9 of the Constitution is distinct from the protection of language rights provided for by the above-quoted sections 30 and 31(1) of the Bill of Rights. In New Zealand it is recognised that employer conduct or policies which target employees' use of a first language may constitute unlawful discrimination on the grounds of race, ethnic or national origin under the Human Rights Act, 1993.35.
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