An assessment of the laws that aim to protect employees against discrimination on the ground of disability: a comparative analysis

Abstract

South Africa is known for its history of unfair discrimination. During apartheid persons with disabilities, women and black people were subjected to unfair discrimination and research shows that this is still the case. Disability discrimination in South Africa has become a pressing concern, not only for the government but also for the general public. In Smith v Kit Kat Group (Pty) Ltd the Labour Court held that: ‘The simple point is that [when] it comes to protection against discrimination in the case of a disability, it is of little relevance what the employee may think about his or her ability to fulfil the obligations and duties of the position. It is about what the employer perceives the disability to cause. Once the employer thinks that because an employee had a disability and this disability impacts on the employee’s ability to do the job, the discrimination protection against [persons with disabilities] must apply.’ The first democratically elected South African government realised the need to redress the injustices caused by the apartheid regime. This included employment opportunities for persons with disabilities. The desire of the government was to create access to labour markets for all South Africans. There was also a need to enact laws to eliminate inequalities and unfair discrimination in the workplace. This gave rise to the inauguration of the Constitution of the Republic of South Africa, 1996.