Stricter penalties for discrimination proposed in new draft law – what you need to know

The proposed changes are outlined in an amendment Bill for the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), and were published by the Department Of Justice And Constitutional Development last week.

Under the proposed new law:

  • Neither the State nor any person may unfairly discriminate against any person based on race, religion, gender or disability.

  • Companies will carry greater responsibility for discrimination and will have to prove that they have taken “reasonable steps” to prevent discrimination by employees if they want to avoid facing legal action themselves along with the employee/s

  • The definition of discrimination would be broadened. The requirement of  intentional action would be removed, and an employee who undermines the dignity of a person in a protected class, even by accident, would create corporate liability.

  • In terms of disability, the proposed law states that: “subject to section 6, no person may unfairly discriminate against any person on the ground of disability, including—
    (a) denying or removing from any person who has a disability, any supporting or enabling facility necessary for their functioning in society;
    (b) contravening the code of practice or regulations of the South African Bureau of Standards that govern environmental accessibility;
    (c) failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.
  • Discrimination would be much easier to prove, and the following actions could lead to legal action:
    – encouraging someone else to discriminate
    – causing prejudice
    – undermining dignity
  • Discrimination could be found whether it had been intentional or not, and so could be classified as direct or indirect.

  • The definition of equality would be amended to include “equal right and access to resources, opportunities, benefits and advantages.”

Pepuda aims to fight unfair discrimination on the basis of race, gender, sex, sexual orientation, age disability, language, religion, and other specific grounds, but also contains catch-all definitions dealing with any discrimination that causes systemic disadvantage.



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