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Danger in anti-discrimination bill, IRR warns

Linda Ensor Parliamentary Writer

Proposed amendments to an act intended to promote equality and prevent discrimination could have a significantly detrimental effect on companies, the conservative liberal lobby group the SA Institute of Race Relations (IRR) says.

The Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill has a deadline of June 30 for written submissions. It proposes extending the scope of the prohibition of unfair discrimination and introducing joint and several liability for a company where this is committed by a worker, employee or agent. The intention is to make a case of discrimination easier to prove.

IRR head of policy research Anthea Jeffery said the proposed amendments could pressurise companies and other entities to change the terms on which they interact with specified groups of people to avoid heavy penalties for failing to “promote equality in terms of impact and outcomes”.

The definition of equality in the bill is expanded to include the equal right and access to resources, opportunities, benefits and advantages and/or equality in terms of impact and outcome.

The definition of discrimination is expanded significantly to mean any act, omission, practice or situation that, whether intentional or not, imposes burdens on, withholds benefits from, causes prejudice to or otherwise undermines the dignity of any person for a reason related to the prohibited grounds of race, sex, gender and 15 other grounds.

It is irrelevant whether the reason for the discrimination is the sole or dominant reason for the act or omission in question. An act will be discriminatory even when it is not intended.

The change in the definition

of discrimination would make it easier for complainants to make out a case of discrimination, Werksmans Attorneys director Dakalo Singo said in an online legal brief.

The act lists 18 prohibited grounds for discrimination: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/Aids status.

Jeffery gives the example of a bank charging higher interest rates to people who pose a higher risk of default and who happen to be black. This could be interpreted as a failure to promote equality and as an act of unfair discrimination.

“The expanded definition of discrimination in the bill may make it more difficult for companies to prove that any discrimination in which they may unintentionally have engaged is not unfair,” Jeffery said in a draft paper.

“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.

“If they fail to discharge this onus, then the act’s many penalties for unfair discrimination will indeed be applied — and will come on top of any punishments imposed under other rules for failing to promote equality.”

Jeffery said that if the bill is enacted companies will have to eliminate discrimination, ensure equal access to resources and opportunities, and/or achieve equality of outcomes between the better off and those disadvantaged by poverty, unemployment or poor schooling.

“This would have farreaching ramifications for the banking, education, insurance, medical aid and pension fund sectors, not to mention companies in general.

“The bill is thus likely to put significant pressure on the country’s major banks to change long-established methods of risk evaluation and to engage in lending practices that may not be sustainable and could contribute to a banking crisis,” Jeffery warned.

The amendments, she said, could undermine established principles of risk assessment and require the granting of loans on equally easy terms to all individuals, companies and other entities. Repossessions and foreclosures might have to be implemented on a strictly equal basis and without regard to differing risk factors.

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2021-06-21T07:00:00.0000000Z

2021-06-21T07:00:00.0000000Z

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