Employees often misunderstand the notion of ‘discrimination’ (which may include harassment) as it applies in South African law. The cases below are examples of this and provide useful explanations by the courts.
Important: Only unfair discrimination is prohibited in our law. In order to make a finding of unfair discrimination, the following determinations need to be made, according to the Constitutional Court (Harksen v Lane NO and Others (CCT9/97)  ZACC), and applying the principles in the Employment Equity Act:
Was there different treatment between the complaining employee and identified comparator employee(s) - this is a factual question.
If there was differentiation, this will only amount to discrimination if the basis for the differentiation is unlawful, such as the prohibited grounds in s6(1) of the EEA - e.g. race, gender, religion, pregnancy, disability, etc. Discrimination can be either direct or indirect (i.e. when something on the face of it appears to be neutral, but in its application, has a disproportionate impact on certain individuals/groups related to one of these prohibited grounds).
Then, even if it does constitute discrimination on the above grounds, it could still be fair discrimination, i.e for justified reasons. Examples of such justification include the inherent requirements of the job, affirmative action, reaching retirement age, and so on. In such cases, the discrimination will not be unfair and therefore not legally prohibited.
In Maphanga v Department of Justice and Constitutional Development  6 BLLR 530 (LC), handed down earlier this year, the Labour Court considered a claim by an employee that he had been harassed and discriminated against by being issued work instructions he considered unlawful and being threatened with disciplinary action when he refused. He claimed that this amounted to unfair discrimination on the ground of conscience.
On the merits, the Court held that harassment amounts to discrimination when the complainant is made to fear psychological, physical or economic harm. This cannot occur when an employee is issued a work instruction. Said the Court:
“The fact that Maphanga ebulliently held a view that the instruction was unlawful does not morph the instruction into a harassment. In his view Maphanga was discriminated against on the ground of conscience. Conscience is a person’s moral sense of wrong or right. This in the Court’s view does not extend to an employee’s attitude towards work instructions. There is nothing pejorative when a superior issues an instruction, which is work related and accompany that with a statement that failure to carry it amounts to insolence and or insubordination. Conscience should not be confused with abomination.… The fact that Maphanga palpably holds a view that he is right in effectively throwing down the gauntlet on his superior does not translate into discrimination on the ground of his conscience.”
Far from being discriminated against, the applicant had been insubordinate.
In Marasi v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd (C219/2020)  ZALCCT 34 (27 June 2023), the employee took up a programme in traditional healing and thereafter tested positive for cannabis at work. PetroSA, due to its hazardous working environment and in line with health and safety legislation applicable in the sector, has a strict policy in terms of intoxicating substances and certain cut-off levels when tested, when employees would be considered to be unfit for duty.
When the employee was refused entry to the workplace based on positive medical tests, he claimed that the company failed to consider his cultural diversity and the fact that the ‘medicine’ was now legal in the country.
The court held that, whilst the company's policy did not, on the face of it, differentiate between employees, it may however indirectly discriminate against persons who use cannabis for religious or cultural purposes, both being prohibited grounds for discrimination in terms of section 6 of the EEA. It was acknowledged that the employee probably experienced a negative impact on his dignity.
Turning to the third element in the test for unfair discrimination, the court however accepted, in this case, that testing negative in terms of the company’s policy is an inherent requirement of the job of all PetroSA employees. given the nature of their work environment and the requirements of health and safety legislation. As such, it is a justification ground against a claim of unfair discrimination. Although the employee sincerely believed that his dignity had been detrimentally affected, the Constitutional Court had stated that whether discrimination exists, does not depend on the subjective feelings of members of the affected group. It is an objective test.
The claim of unfair discrimination accordingly failed.
It is therefore important for employers and employees to understand the context and circumstances when a claim of 'discrimination' is made or considered. In a workplace environment especially, there are many justified reasons for differentiated treatment; and there will always be a balancing of rights. The rights of individual employees will be weighed up against those of the employer and its legitimate interests, as well as other employees.
© Judith Griessel