Discrimination in the workplace – Diversity and appearance discrimination

Discrimination occurs when an employer treats a person differently based on physical attributes or other factors such as religion or political belief. The act of differentiation may, at times, be fair, but it is more commonly found that differentiated treatment is unfair.

Appearance-based discrimination, or lookism, is the discriminatory treatment of people considered to be physically unattractive or undesirable in appearance and is becoming a more rampant issue in the workplace daily.

Examining employee protections against appearance-based discrimination

There are different grounds upon which this arbitrary discrimination is based and may include physical attractiveness, grooming, tattoos, piercings, weight, and dress code of a specific employee. Although this form of discrimination on the employer may not always be conscious, their subliminal appearance preferences may infiltrate their employment approach, leading to employees who do not meet specific appearance standards suffering discrimination.

The question that comes to light is to which extent employees, specifically in South Africa, have protection against this phenomenon. Although the South African legislature is relatively underdeveloped in this area in comparison to the rest of the world, the Courts have touched on this issue in a number of cases. South Africa does not have a specific law that prohibits discrimination based on appearance.

Case study – Hoffmann v SAA

In the labour sphere, a balancing act is required between the rights and interests of employer and employee. This consideration was highlighted in Hoffmann v SAA 2001 SA 1 CC, 2000 11 BClR 1211 CC. The Constitutional Court held that SAA had infringed the employee’s constitutional right not to be unfairly discriminated against. The Court ordered that the employer immediately make an offer of employment to the employee, and the employer was ordered to pay the costs of the applications both in the High Court and the Constitutional Court.

Case study – Harksen v Lane

In the matter of Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12, 1997 (11), the Constitutional Court stated that fairness was assessed by determining whether there has been an infringement of an individual’s fundamental human dignity or impairment of a severe comparable nature. It is proposed that evaluating an employee based on their appearance goes to the basis of an individual’s dignity, resulting in gross unfairness.

Case Study – IMATU and Others v City of Tshwane Metropolitan Municipality and Others

In IMATU and Others v City of Tshwane Metropolitan Municipality and Others (44390/2014) [2014] ZAGPPHC 412, the Court considered a matter where two female recruit’s employment was terminated for refusing to cut their hair “as short as that of men.”

They were subsequently dismissed because they refused to obey the lawful instruction to cut their hair. The court decided in favour of the recruits and ordered their reinstatement from the programme, which clearly shows the balancing act between the freedom of expression of an individual and the business or operational needs of an employer.

It is clear from the Labour Appeal Court’s ruling in Department of Correctional Services v POPCRU & Others 2013 4 SA 176 SCA that employers should have due regard for the reasonable accommodation of diversity of employees in the workplace unless the employee in question clashes with the inherent requirements of the position in which they are employed.

Legal recourse and employer policy recommendations

Employees in South Africa can bring an unfair discrimination application under the Employment Equity Act, alleging that the form of appearance discrimination falls under an unlisted ground of unfair discrimination, where the employer will have to raise a legitimate defence to the alleged discrimination.

As discrimination may be fair or unfair, every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. It is therefore suggested that the employer protects itself by implementing a possible workplace policy dealing with appearance discrimination in the workplace.

Contact Invictus on 0861 737 263 for any queries/assistance regarding Appearance Discrimination in the Workplace and for us to conduct your inquiries.