Civil society groups, business groups and opposition parties have raised concerns around proposed changes to the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which they warn will unfairly harm businesses in South Africa.
The Act’s main purpose is to realise the constitutional right to equality so that people do not face unfair discrimination by the state or anyone else.
However, concerns have been raised about a new proposed bill that will introduce ‘idealised’ requirements to achieve this goal, and broaden the definition of discrimination.
The bill proposes to amend the definition of “discrimination” to make it clear that a person doesn’t need to act with intention before they can be found guilty of unfair discrimination.
The opposition Democratic Alliance said it is concerned about these amendments and warned that the removal of ‘intent’ will have unforeseen and far-reaching consequences, whereby individuals might break the law either without knowing they have done so or without ever intending to do so.
The proposed definition of discrimination is simply too broad and will overwhelm South Africa’s already overburdened justice system, it said.
This was echoed by the National Employers Association of SA (Neasa) which said that the expanded definition of discrimination in the bill may make it more difficult for companies to prove that any discrimination, in which they may have unintentionally engaged, is not unfair.
“The objective criteria defence will still be available, but companies may nevertheless find it harder to show the fairness of their conduct when the definition of discrimination is so much wider than before,” it said.
The second major point of contention relates to “vicarious liability”, where the bill will make businesses liable for contraventions performed by their workers, employees, or agents. This includes discrimination, hate speech and harassment.
The introduction of vicarious liability in clause 2 will put an unreasonable responsibility on employers to police the actions of their employees, even during non-working hours, the DA said.
“Employers should not be unreasonably held liable for the discriminating behaviour of their employees. In a country where the numbers of unemployment grow daily, the government should not be introducing legislation that will discourage employment in any way or form.”
Neasa said that the proposed amendments to the Act will furthermore pressure most companies and other institutions in various sectors to amend the terms on which they do business.
“They will now have to tread on proverbial eggshells when dealing with all persons concerned, in case they, unintentionally, by accident, or through the actions of an employee, discriminate against someone.”