HR 101 - Religious Discrimination - Part 1

ARTICLE 70

Religious Discrimination – Part 1

By Nikki Viljoen of Viljoen Consulting CC - June 2011

The law states, in Section 6 of the Employment  Equity Act (EEA) that there can be no unfair discrimination against an employee on arbitrary grounds.  One of these grounds of course, is religion and this means that as an employer you cannot discriminate against an employee or a prospective employee, on the grounds of their religion.

Some of the area’s around religion that you would need to take into consideration are (but not limited to):-

-    You cannot turn down a job applicant based on the fact that they are no (or are for that matter) of the same religion as you are, irrespective of what that religion is
-    You cannot decide that only the employees belonging to a specific religion will be allowed to go to church/temple/shul/mosque etc., during working hours. The requirements of all the different faiths must be taken into account.
-    You cannot insist that employees of a specific faith or religion must work on  public holidays

That said, this is not an exact science and although the statements made above are examples of the types of discrimination out there, there are instances where they may not be considered “unfair discrimination”.  Whether the discrimination is unfair or not will depend on various issues, such as (but not limited to) whether or it makes sense.  Now whether or not it makes sense or not will also be dependent on the requirements of the job.

Here are some examples:
If you owned a factory type business where there were machines operating and where stupid mistakes could lead to loss of limb or life, you could not stop religious emblems being worn underneath garments as this would not affect the way that they worked or put them in any kind of danger.  However, that said, if under the same conditions and circumstances you staff insisted on wearing these same emblems on necklaces around their necks, dangling out of their clothing, you could state that this put them at risk of injury to themselves and their peers and in this instance, of course you would be well within your rights to make that rule.  What you absolutely couldn’t do though is allow some of the staff to then wear necklaces and not others.  You have to be consistent in your decisions.

Some of the other examples that I have seen posted by Ivan Israelstam are rather evident in themselves and I must admit that I had a good chuckle to think that someone would even have considered them – some of these are “You could turn down a Jewish person for the position of Pope – that would not be considered unfair.  You could refuse to employ an atheist as a priest – that would be considered fair.”

Next time we will look at an actual CCMA case where the staff cried ‘foul’ and see what happened.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za