The extent to which South African law protects women with disabilities against unfair discrimination in the workplace

Abstract

The legacy of apartheid has created a deeply unequal society in South Africa. The Constitution of the Republic of South Africa sought to build a united and democratic society, whilst ensuring that each citizen is equally protected by the law.1 A constitutional mandate is therefore imposed on the State to ensure that the right to equality is realised and that the most marginalised members of society are adequately protected.2 Research shows that women with disabilities are still unfairly discriminated against in the workplace. To give effect to the equality clause of the Constitution of the Republic of South Africa, the Employment Equity Act 55 of 1998 was enacted that endeavours to ‘promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and implement affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workplace.’4 The objective of this research paper is to examine the South African legislative framework to determine the extent to which the relevant provisions protect women with disabilities in the workplace. In addition, the flaws within the current legislative framework are identified. The theory of intersectionality is used as a lens through which the relevant law will be assessed. A comparison is made between the legislative frameworks in Canada and South Africa governing unfair discrimination to determine whether South Africa can learn any lessons from the legislative framework that exists in Canada when it comes to protecting women with disabilities.