Gay and Lesbian Equality: briefing by National Coalition on Gay & Lesbian Equality

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Employment and Labour

23 March 1998
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LABOUR PORTFOLIO COMMITTEE
24 March 1998
GAY AND LESBIAN EQUALITY: BRIEFING BY NATIONAL COALITION ON GAY & LESBIAN EQUALITY

Document handed out:
Sexual Orientation And Sexual Diversity In The Workplace: Policy Proposals For A Code Of Good Practice (see appendix)

The Chairperson, Mr Oliphant, announced that the committee would not meet again this session. The outstanding issues on public hearings and the budget were postponed until the next session. Outstanding issues regarding international visits were discussed; in particular, whether the money saved from postponed trips abroad would be rolled over to the next year’s foreign trip budget.

Presentation by the National Coalition for Gay and Lesbian Equality
The Coalition described the victimization and discrimination faced by the gay and lesbian population within the workforce, including lack of access to jobs and lack of job security. The Coalition acknowledged the new labour legislation, but indicated that many issues have yet to be addressed: employment benefits, medical aid, providing for a surviving partner, gay marriages, and adoptions.

D.M. Nkosi (ANC) asked for further comment on combating prejudice and fear in the workplace. B.R. Mkhize (ANC) asked how other provinces have organized around the issue. J.D. Arendse (ANC) asked what services should be made available to gay and lesbian workers. The Coalition discussed the need for informative workshops and gay and lesbian worker forums.

M.C. Ndlovu (ANC) requested clarification on the Coalition’s policy suggestions regarding family leave. M.I. Vilakazi (ANC) asked for the term "transgender" to be defined. L.R. Mbuyazi (IFP) expressed concern about the adoption process and asked for further information regarding the rights of the child. The Coalition explained that under the current law, there is an allowance for family leave but gays and lesbians are excluded from that benefit. As to the adoption of children, the best interest of the child should be paramount, not the sexual orientation of the parent. (Van Rooyen v. Van Rooyen was cited)

Appendix
SEXUAL ORIENTATION AND SEXUAL DIVERSITY IN THE WORKPLACE
POLICY PROPOSALS FOR A CODE OF GOOD PRACTICE

Drafted by the Equal Rights Project of the National Coalition for Gay and Lesbian
Equality after consultation with lesbian and gay workers throughout South Africa.

INTRODUCTION
The Constitution of the Republic of South Africa (Act 108 of 1996) prohibits unfair discrimination on a range of grounds including sexual orientation. For the first time, lesbian and gay people in South Africa are recognised as equal citizens. However, there are still laws, policies, regulations and practices which unfairly discriminate on the basis of sexual orientation. Discrimination in the home, community, workplace and throughout the public sphere against lesbian and gay people also remains a daily reality.

The Constitution places a positive duty on the government to put in place measures which advance the provisions of the Constitution. Work and unemployment is central to the lives of millions of South Africans including lesbian and gay people. The proposed Employment Equity Bill is an important measure which addresses workplace discrimination.

THE CAMPAIGN FOR LESBIAN AND GAY EQUALITY
The National Coalition for Gay and Lesbian Equality (The Coalition) is an affiliation of 74 lesbian, gay, bisexual and transgendered organisations throughout South Africa. Its affiliates reflect the demographic composition of the South African population. The Coalition was formed in December 1994; it is mandated by its affiliates to work towards full equality in all spheres of society. The Coalition's work includes law reform, lobbying, advocacy, employment equity, leadership training and development.

RECOMMENDATIONS FOR A CODE OF GOOD EMPLOYMENT PRACTICE
Sexual orientation is not generally considered a workplace issue in South
Africa. The work done by the Equal Rights Project of the Coalition since
September 1996 indicates that:

Workplace discrimination based on sexual orientation is rife in South Africa: it includes harassment at work, unfair dismissals, unequal access to benefits and fear of discovery;

Few trade unions and labour movement organisations have understood and accepted sexual orientation as a workplace issue;

Few employers and employer-bodies have understood and accepted sexual orientation as a workplace issue;

Policies and codes in the public sector also lack knowledge and understanding of sexual orientation as a workplace issue. A notable exception is the South African National Defence Force which prohibits discrimination based on sexual orientation and homophobia in its ….. policy adopted by the Department of Defence and Parliament in 1997.

The National Coalition for Gay and Lesbian Equality recognises that cooperation between employers, trade unions, workers, government and civil society agencies is a precondition for the elimination of unfair discrimination and homophobia in the workplace. Increased productivity, job security and employee loyalty as a result of fair and non-discriminatory labour practices will benefit the entire economy.

The proposed employment equity legislation is an important milestone in this regard. The Employment Equity Bill addresses affirmative action (on the basis of race, gender and disability) in the private and public sector but it also incorporates the elimination of unfair discrimination in the workplace. Sexual orientation is included as a ground for non-discrimination in the proposed legislation.

The Employment Equity Bill also makes provision for Codes of Good Practice to guide employers, unions and government on particular areas of discrimination or contention. The Coalition recommends the promotion, development and adoption of a Code of Good Employment Practice to guide employers and employees on how to deal with sexual diversity in the workplace. Such a Code should be developed from the point of view of the equality principle of the Constitution and new employment laws which include the Labour Relations Act of 1995 (LRA) and the proposed employment equity legislation.

AIMS OF THE POLICY PROPOSALS
The policy proposals are recommended for all private and public sector employers. The proposals constitute a broad framework which can be adapted to meet the specific needs of a particular workplace (large or small). Education and training of human resource managers, shop stewards, managers, benefit providers and other individuals in diversity management are central to the proposals. The development of the policy proposals into a Code of Good Employment Practice on Sexual Orientation would function as a guide for employers, unions and workers.

POLICY PROPOSALS FOR A CODE OF GOOD EMPLOYMENT PRACTICE
ON SEXUAL DIVERSITYAND THE WORKPLACE

Definitions
In these proposals unless indicated otherwise, the following definitions apply:
"Domestic partnership" means two people of the opposite- or same-sex who live together in a committed and intimate relationship with a mutual obligation of support for basic living expenses for the duration of the domestic partnership.

"Employee" means an employed person, a job applicant, or, a former employee.

"Employer" means all employers in the private and public sector.

"Sexual orientation" means the sexual identity or preference of any individual or group of people and it includes heterosexual, gay, lesbian, bisexual or transgendered people.

"Homophobia" means the irrational hatred and fear of lesbian, gay, bisexual or transgendered persons. This includes prejudice against same-sex acts or relationships.

1. Sexual Orientation and the Employment Contract
1.1 All employees have the right to equality on the basis of their sexual orientation. Gay and lesbian employees shall not be treated differently from other employees simply because of their sexual orientation.
1.2 Recognising past prejudice and discrimination, gay and lesbian employees shall be treated in a just and non-discriminatory manner.
1.3 Employers, employees and their respective organisations shall acknowledge that fair employment opportunities are necessary for all employees.

2. Recruitment, continued employment, and termination of employment
2.1 Pre-employment interviews and other examinations should determine the functional performance and ability of a prospective employee to perform the inherent requirements of a job. No employee will be denied employment because of their sexual orientation.
2.2 If an employee discloses their sexual orientation, it shall not be a basis for refusing to conclude, continue or renew an employment contract;
2.3 Gay and lesbian employees shall be governed by the same contractual obligations as all other employees;
2.4 No employee may be dismissed or have their employment terminated merely on the basis of their sexual orientation, nor shall their sexual orientation influence retrenchment procedures.

3. Promotion, Training and Development
3.1 Sexual orientation shall not be a criterion for a decision to promote, train and develop an employee.

4. Leave
4.1 Employees with same-sex partners and families shall be entitled to nondiscriminatory family leave benefits currently enjoyed by married employees.

5. Benefits
Unmarried employees and their domestic partners (gay, lesbian or heterosexual) do not have equal access to employment benefits which married employees and their spouses currently enjoy.

Refusing employment benefits on the basis of sexual orientation and
marital status is both unconstitutional and unlawful in terms of the
Constitution (Section 9(3),(4)) and the Labour Relations Act of 1995
(Section 1 of Schedule 7).

Employment benefit packages comprise a substantial portion of an employees' financial compensation. The denial of such benefits to employees who are in domestic partnerships means that these employees receive substantially less compensation than do their heterosexual married colleagues.

In view of this, a responsibility falls on employers, employees and the government to create a viable non-discriminatory approach to employment benefits which take into account a variety of family arrangements including domestic partnerships.

The following steps are critical to protect employees' benefits and workplace rights:
5.1 All definitions of spouse, dependant or family in company policies, industrial bargaining agreements need to include domestic partners whether lesbian, gay or heterosexual. An employee's sexual orientation and marital status should not be a requirement for admission to any employment benefit schemes.
5.2 Employees with same-sex domestic partners and those in unmarried heterosexual domestic partnerships should have equal access to employment benefits.
5.3 Employers, the state, private and public institutions responsible for granting employee benefits such as:
medical aid and health related benefits
group life assurance
pensions and provident funds
housing benefits
unemployment insurance
bursaries, training and study subsidies
disability and accident benefits
can ensure that viable non-discriminatory policies are developed. This should apply to all employment benefits relating to spouses, children and/or partners and dependants.
5.4 In cases where an employer is unable to ensure that non-discriminatory policies are followed, the employer and trade unions should seek to ensure that the policies are changed, or should find an agency which provides the same benefits on a non-discriminatory basis.

6. Workplace Grievance and Disciplinary Procedures
6.1 A gay or lesbian employee has the same rights and duties as other employees.
6.2 Where discrimination based on an employee's sexual orientation is alleged, the employee shall have recourse to the necessary mechanisms and remedies for redress.
6.3 A gay or lesbian employee shall be subject to the same disciplinary procedures as other employees.

7. Workplace Education and Training on Sexual Diversity in the Workplace
Employers, employees and their representative organisations can agree and develop education programmes aimed promoting equality and diversity in the workplace. Such programmes should include equality on the basis of sexual orientation. Employers, employees and their respective organisations are encouraged to promote the implementation of such programmes the workplace. Human resource and labour relations training should include sexual diversity as a workplace issue.
7.1 Education programmes should utilise strategies that are sensitive and that promote understanding, tolerance, religious freedom and respect for all employees.
7.2 Education programmes shall inform employers and all employees of the provisions of employment laws and codes on non-discrimination and the rights and duties of employers and employees. A Code of Good Practice on Sexual Orientation approved by the Department of Labour should be available in the workplace.
7.3 Where possible and appropriate, employers may assist in providing education and support systems for the dependants and employees who may have various problems related to their sexual orientation and which may affect their performance at the workplace. A list of counselling services on sexual orientation could be made available to human resource personnel.

8. Privacy and Confidentiality
8.1 All employees have the constitutional and legal right to privacy about their sexual orientation. Because of the stigma and prejudice attached to being lesbian, gay, bisexual or transgendered, many individual choose not to disclose their sexual orientation to family, colleagues or friends. Voluntary disclosure should be welcomed and encouraged as a measure to create understanding and acceptance in the workplace.
8.2 An employee should not be obliged to inform an employer or fellow employees of their sexual orientation.
8.3 Confidentiality regarding all information about the sexual orientation of an employee must be maintained and respected, unless disclosure is legally required.
8.4 Trustees and administrators of benefit funds may not disclose the sexual orientation of an employee to an employer without the employee's written and informed consent.

9. Prejudices and fears of fellow employees, management and clients
9.1 It is the responsibility of an employer in consultation with employee organisations to ensure that all employees are educated about sexual diversity issues in the workplace so as to minimise discrimination and homophobia.
9.2 The harassment (including sexual harassment) of any employee on the basis of their sexual orientation or perceived sexual orientation will be regarded as a serious breach of the employment contract.
9.3 Education and counselling for an employee who is homophobic and refuses to work with lesbian or gay colleagues will be encouraged before taking any disciplinary action.
9.4 Refusal to work with an employee on the basis of their sexual orientation shall be regarded as a breach of the employment contract subject to a disciplinary procedure.

10. Dispute Resolution
10.1 Employers, employees and their representative organisations are encouraged to develop and refine the proposals and to develop a Code of Good Practice on Sexual Orientation. This can be adapted into suitable workplace policies and programmes.
10.2 Any dispute between an employer and an employee in relation to or arising from the application of the Code should be subject to the provisions of the Labour Relations Act of 1995 and the proposed Employment Equity legislation.

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