Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting.
The Employment Equity Act (EEA) prohibits employers from unfairly discriminatin, against an employee on numerous grounds including gender and sex. The EEA also categorises, as unfair discrimination, harassment of an employee on many grounds including sex and gender, and prohibits such practices.
In view of the fact that the legislators refer separately to “sex” discrimination and “gender” discrimination in the EEA they must see “sex” and “gender” as being different to each other. As these two terms are often used interchangeably it is important to assess why they have different legal meanings.
One possible distinction that could be drawn between the two terms is as follows: “Gender” discrimination may refer purely to discrimination against an employee because she is female or because he is male. For example, requiring female employees to retire at age 60 and males at the age of 65 is gender discrimination and not sex discrimination because no sex act or sex-related act took place.
On the other hand “sex” discrimination may refer to the instance where, regardless of the employee’s gender, the employer carries out an unacceptable sex-related act against him/her. For example, the employer may have harassed the employee sexually by grabbing his buttocks. If, for instance, the harasser and victim were both male there is clearly no gender discrimination but rather unfair behaviour relating to sex in the sense of sexual desire. Even if the employer and employee were of different genders the act is a sexual one rather than discrimination on the grounds that the victim is of a particular gender.
Employers need to remember that sexual harassment can be any sexually related act that is unwelcome in the eyes of the recipient such as nude posters, internet visuals, dirty jokes, playfulness, crude language or even physically related compliments in the workplace.
It is also possible that discrimination can take place that involves both my definitions of sex and gender discrimination at the same time. For example, in a company where women are not promoted into management positions because of their gender the male MD may offer a female employee a promotion if she sleeps with him. Or he may refuse to consider her application because she has refused to sleep with him. This involves both a barrier against employees because they are women and sexually motivated behaviour prejudicial to the victim.
Whether the employer’s unwarranted act is sexual in nature or discriminates against a particular gender it is likely to be found to be unfair discrimination. Should it lead to resignation or dismissal it could be seen to be automatically unfair. This could make the employee very rich indeed at the cost of the employer.
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