Accommodating Diversity in the Workplace

labour-guideBy Judith Griessel, Griessel Consulting

Employers are increasingly required to navigate an ever-changing workplace with people from diverse backgrounds, cultures and religions. In a society with such diverse beliefs as ours, employers are challenged not only to be tolerant, but also to accommodate that diversity in the workplace. Given the need for efficient and quality services, the question is however to what extent the (religious / cultural) beliefs and practices of employees have to be accommodated. The Courts have stated that it must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges. Here are some guidelines.

Introduction

In terms of the Constitution, parliament has the power and obligation to draft enabling legislation to support and give effect to constitutional imperatives. The courts are continuously called upon to determine legal disputes which may include the interpretation of legislation and testing compliance with constitutional principles. Although individual rights are guaranteed in the Constitution, they are not unlimited. In the workplace, the right to freedom of religion may for example be limited by the employer’s right to freedom of economic activity (i.e. the right to conduct business). However, in the same way that the employee’s rights are limited by those of the employer, the reverse is true as well: the employer cannot ride roughshod over the rights of employees. When rights clash, a balance has to be struck and this has to be done in a fair and transparent manner.

Diversity as a concept encompasses more than race, gender, religion and culture: however these are the aspects that have received the most attention and are possibly the most controversial. These issues are far from settled and the workplace continues to evolve. The Supreme Court of Appeals in Solidarity obo Barnard v South African Police Service 2014 (2) SA 1 (SCA) referred to “nationhood’s growing pains” and the Labour Appeal Court in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2012] 11 BLLR 1099 (LAC) made the following observations:

“It would be disingenuous of anybody to deny that our society is characterised by a diversity of cultures, traditions and beliefs. That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The Constitution of the country itself recognises these rights and practices. It must be recognised that some of these cultural beliefs and practices are strongly held by those who subscribe to them and regard them as part of their lives. Those who do not subscribe to the others’ cultural beliefs should not trivialise them ……….. What is required is reasonable accommodation of each other to ensure harmony and to achieve a united society.” 

Religion and Culture

These are abstract concepts and therefore not so easy to pinpoint as perhaps race or gender. There is generally greater legal precedent of dealing with disputes based on religion than on culture. Cultural aspects, especially in the South African context, are however gaining ground and the courts have addressed both issues in recent judgements.

The Constitutional Court described religion to be ordinarily concerned with personal faith and belief, while culture generally relates to traditions and beliefs developed by a community – often there will be a great deal of overlap between the two. However, the court made it clear that the importance of culture should not be minimised; and that constitutional protection also applies to voluntary (non-obligatory) religious and cultural practices.

Principles and obligations

An employee’s human rights are specifically protected in relation to the workplace, inter alia by the Employment Equity Act (EE Act) which prohibits unfair discrimination on particular prohibited grounds in any employment policy or practice; as well as s 187 of the Labour Relations Act (LRA) which declares dismissal of an employee on grounds such as religious or cultural beliefs, as automatically unfair.

There are two concepts central to dealing with these issues in the workplace, i.e. “reasonable accommodation” and “fairness”.

  • Differentiation and discrimination is not prohibited in our law. Unfair discrimination is.

S6 of the EE Act: “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground”.

It is therefore imperative to determine when a discriminatory practice may nevertheless be fair – which comes back to the notion of balancing various opposing rights.

  • This is where the notion of ‘reasonable accommodation’ comes in.

In terms of the EE Act, affirmative action measures include “making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented”. The Act defines ‘reasonable accommodation’ as any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment in the workforce of a designated employer.

According to the Constitutional Court, this concept has at its core the notion that sometimes the community, whether it is the State or an employer, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. This does not imply an automatic right for people to be exempted by their beliefs from the laws of the land or the rules of an organisation / employer. However, wherever reasonably possible and without causing undue harm, these should be accommodated. A society which values dignity, equality and freedom, must require people to act positively to accommodate diversity.  Those steps might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred.

The difficult question then is not whether positive steps must be taken, but how far the employer must be required to go. Reasonable accommodation is, in a sense, an exercise in proportionality that will depend intimately on the facts of the particular case and the nature of the interests involved.

It is accordingly clear that reasonable accommodation and the extent to which an employer will be burdened by the accommodation, will always be an important factor in the determination of the fairness of discrimination.

Exceptions to the rules

The employer is entitled to make workplace rules and require certain standards to be upheld by all its employees. Such rules / standards generally have a legitimate operational, or business, justification – but should not be held absolute. Many popular arguments forwarded by employers (and community institutions such as schools) in an attempt to justify rigid and indiscriminate application of such rules, have already been rejected by the courts.

For example:

  • The argument that allowing a person to have tattoos, piercings or dreadlocks for religious or cultural reasons in contravention of the organisation’s dress code will necessarily lead to others joining in or complaining about unfair treatment, was rejected by the Constitutional Court in MEC for Education, Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC). The court emphasised that the possibility for abuse should not affect the rights of those who hold sincere beliefs. Also, that the acceptance of one practice does not require the organisation to permit all practices. If accommodating a particular practice would impose an unreasonable burden on the organisation, it may refuse to permit it.
  • The argument that a relaxation of the dress code for some employees for sincere religious / cultural reasons would undermine the organisation’s objective to engender uniformity, neatness and discipline was rejected by the Supreme Court of Appeals in Department of Correctional Services and another and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 (SCA).

The court had to consider the dismissal of two employees of the Department of Correctional Services for refusing to cut off their dreadlocks. It held that (on the facts of this particular case) the employees’ sincerely held cultural beliefs were constitutionally protected and in the absence of any evidence that the dreadlocks had any impact on their job performance or unreasonably imposed a burden on the Department, their dismissals were automatically unfair.

  • The issue of beliefs relating to traditional healers and cultural ceremonies / rituals was dealt with in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 1 All SA 636 (SCA).

The court held that these aspects should not be evaluated in terms of western principles and that it could, under given circumstances, constitute a valid reason for absence from work. It said that there is an obligation on the employer to attempt to ‘reasonably accommodate’ such (sincere) beliefs, even if it does not believe in it. This does not necessarily mean that the employee should be granted paid sick leave, but accommodation, such as permission to take unpaid leave or a similar compromise, could be considered.

“Our courts are familiar with and equipped to deal with disputes arising from conventional medicine, which are governed by objective standards, whereas questions regarding religious doctrine or cultural practice are not. Courts are therefore unable and not permitted to evaluate the acceptability, logic, consistency or comprehensibility of the belief. They are concerned only with the sincerity of the adherent’s belief, and whether it is being invoked for an ulterior purpose. This of necessity involves an investigation of the grounds advanced to demonstrate that the belief exists. Secular authorities, including courts and tribunals, should avoid attempting to resolve civil disputes by applying reasoning that involves interpreting and weighing religious doctrine” (my emphasis).

The argument that the effect of these findings is to open the floodgates to malpractices that operate towards turning the work environment into total disarray, was rejected by the court.

Practical implementation

The principles taken from all of the above can be summarised as follows:

  • The organisation’s rules, standards, policies and practices may not be (directly or indirectly) unfairly discriminatory – this is an obligation placed on all employers by the Employment Equity Act. The rules or policies themselves may even make accommodation for different religious practices, e.g. grant alternative or additional public holidays.
  • Even in faith-based organisations, reasonable tolerance of other faiths, beliefs and cultures can be expected. They should create a social, intellectual, emotional, behavioural, organisational and structural environment that engenders a sense of acceptance, security and respect for persons with differing values, cultural backgrounds and religious beliefs.
  • Whilst rules and practices (such as dress code) may have perfectly valid operational or business justification and not be arbitrary or discriminatory on any particular ground, applying or enforcing the rule in certain instances could be deemed as unfair discrimination.
  • There is an obligation on employees who feel that their religious or cultural beliefs are being jeopardised or threatened by the organisation’s practices or rules, to make these beliefs known to the employer.
  • As part of observing ‘reasonable accommodation’, the employer should, in addition to its Code of Conduct or other rules, have a mechanism in place that allows for employees to raise objections or to apply for exemption of such rules.
    • The employer may put protocols and procedural requirements in place, such as the requirement that the applicant for exemption provide a written explanation for requiring the exemption.
    • Each case must then be determined on its own merits, weighing up the nature of the objection and/or the motivation of the application for exemption from the rule.
    • The importance of the religious or cultural practice to the individual, including the question of whether it needs to be pursued during working hours, will need to be weighed against the effect that the granting of the exemption may have on the important and legitimate principles that support the particular rule or standard.
    • The approach to the granting of exemptions will thus require an exercise in proportionality that will depend on the facts of the particular case and the nature of the interests involved. If accommodating a particular practice would impose an unreasonable burden on the employer, it may refuse to permit it.
  • In performing this exercise, the employer needs to be fully apprised of the religious or cultural importance of the practice to the individual.
    • The employer may require the employee to provide some credible proof (e.g. an affidavit from a religious minister) as to the centrality of the particular belief to the employee’s religion. This may not be necessary where it is well known that certain religions require strict adherence to certain practices, e.g. male Muslims attending Friday prayers, or (true) Rastafarians not being permitted to cut their dreadlocks.
    • Whether a religious or cultural practice is voluntary or mandatory is irrelevant at the threshold stage of determining whether it qualifies for protection; however, the centrality of the practice, which may be affected by its voluntary nature, is a relevant question in determining the fairness of alleged discrimination.
    • The employer is not permitted to evaluate the acceptability, logic, consistency or comprehensibility of the belief, but only the sincerity of the adherent’s belief, and whether it is being invoked for an ulterior purpose. This of necessity involves an investigation of the grounds advanced to demonstrate that the belief exists.
  • Defences available to an employer against allegations of unfair discrimination are (1) inherent requirements of the job; and/or (2) valid affirmative action measures. When considering inherent requirements of the job, care must be taken not to state the employer’s interests too widely. Evidence must show that the employee’s job performance would be adversely impacted by allowing the exemption, or that it would impose an unreasonable burden on the employer.

For more information please contact Judith Griessel at info@griesselconsulting.co.za for further information, or for assistance with a policy in this regard.

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