Indirect discrimination against women in the workplace.

Abstract

This dissertation focuses on indirect discrimination against women in employment. It briefly examines the causes of discrimination against women in the workplace. Further it explains the concept of indirect discrimination by tracing its origins in the United States of America and analyses the development of the law of indirect discrimination in the United States until the introduction of the Civil Rights Act of 1991. This analysis involves an examination of the elements involved in proving an indirect discrimination claim and the problems experienced in doing so. The British indirect discrimination laws and cases are then examined to the extent to which Britain deviates from the American approach. The comparative law discussion will indicate the problems that have become an inherent feature of indirect discrimination cases. The problematic nature of proving indirect discrimination necessitates a discussion of the common types of conditions and requirements that indirectly discriminate against women. It is against this background that the present South African legislation on indirect discrimination in employment is analysed and case developments reviewed. Finally, the proposals of the Green Paper on Employment Equity are examined. The recommendations for the introduction of a comprehensive discrimination statute; the introduction of an independent commission; and the formulation of a Code of Good Practice that will provide guidelines to employers, are supported. Further, recommendations are made for a flexible discrimination legislation that provides a broad legal framework which allows for development of the law; the necessity to address issues regarding administration and costs involved in implementing this legislation; the introduction of additional funtions of the independent commission relating to training and access to the law; and the adoption of a statutorily enforced affirmative action policy that addresses the inequalities faced by women in employment.