LEGISLATIVE UPDATES
THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL, 2000
1. Introduction and Background
The Promotion of Equality and Prevention of Unfair Discrimination Bill, 2000 provides the policy framework to address unfair discrimination; harassment and hate speech. The purpose of the Bill is to facilitate the progressive restructuring and transformation of South African society in adherence to the aspirations expressed in the Constitution. The Bill does this by eradicating systemic forms of discrimination. The Bill also expresses the state's commitment to international obligations such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination.
The primary purpose of the Bill is to promote substantive equality. To this extent the Bill makes provision for the prevention and prohibition of unfair discrimination by allowing for redress for the victims of unfair discrimination and those whose right to equality is violated.
2. Objectives of the Bill
The key objectives of the Bill are to give effect to the aspirations for a human rights based society expressed in the Constitution; in particular the values of non-racialism and non-sexism; the equal enjoyment of all the rights and freedoms by everybody; the promotion of equality; and he prevention of unfair discrimination.
3. Main Provisions of the Bill
The Constitution (Section 9) requires that national legislation to prevent or prohibit unfair discrimination and promote equality to be enacted.
The Bill also prohibits hate speech; and harassment.
In addition, the Bill provides for measures to facilitate the eradication of unfair discrimination, hate speech and harassment, especially if based on race, gender and disability.
The Bill states the procedures for the determination of circumstances of unfair discrimination.
In order to promote equality the Bill provides measures for public education and public awareness relating to unfair discrimination, hate speech and harassment.
The Bill determines measures to advance persons disadvantaged by unfair discrimination; as well as remedies for victims of unfair discrimination, hate speech and harassment.
The Bill directs the Minister to give special consideration to the inclusion in the Bill of HIV/AIDS status, socio-economic status, nationality, family responsibility and family status as prohibited grounds of discrimination. To this extent, the Minister must appoint the Equality Review Committee. The Committee must within one year investigate the matter and make recommendations to the Minister.
Unfair Discrimination
The Bill prohibits unfair discrimination, particularly on the basis of race, gender and disability.
Prohibited grounds include sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, religion, conscience, belief, culture, language and birth. Equality courts can establish additional grounds if they cause or perpetuate systemic disadvantage, undermine human dignity, or adversely affect a person's enjoyment of rights and freedoms.
Affirmative action or measures designed to protect and advance disadvantaged persons are not considered as unfair discrimination. The Bill has implications for affirmative action policies: it states that employers, including the government, may not create informal barriers to employment; or discriminate against anyone by advertising in a way that excludes potential candidates from applying.
In addition, the Bill lists certain discriminatory practices that are widespread and unacceptable; as well as an illustrative list of unfair practices in the following sectors:
Health care services and benefits Labour and employment
Housing, accomodation, land and property Pensions
Insurance Services Professions and Bodies
Provision of goods, services and facilities
Clubs, sports and associations
The purpose of this list is to guide the public as to when and how they should apply for redress; and to illustrate what type of practices are deemed discriminatory.
Schedule of Unfair Practices in Respect of Health Care Services and Care Benefits
The Bill determines the following as unfair / discriminatory practices:
The Bill prohibits unfair discrimination in relation to access to health care services. This implies that a person cannot be denied access to health care facilities, and that health care facilities should be available and accessible to everybody. It also promotes equality for people with disabilities: It is not assumed that people with disabilities should not or cannot procreate, adopt or care for a child, or foster a family environment simply because an individual or couple may have a disability or disabilities. In terms of the Bill it is discriminatory to exclude a person from contributing to her or his medical care or treatment solely because he/ she has a psychiatric or mental disability. The Bill states that a person who is disabled cannot be refused standard treatment or health care services solely because the person has a disability.
Hate Speech
An important provision of the Bill is the prohibition of hate speech. The Bill states that no-one may publish, propagate, advocate or communicate words that can reasonably be perceived to demonstrate a clear intention to be hurtful; harmful or promote or propagate hate speech.
Harassment
The Bill states that no-one may subject another person to harassment.
Deternination of Fairness or Unfairness
The test for fairness / unfairness dies not apply to hate speech and harassment.
The following factors are considered when determining fairness/unfairness:
The context
Whether the discrimination is unlikely to impair human dignity
The impact or likely impact of the discrimination on the complainant
The position of the complainant in society and whether he / she suffers from past disadvantage
The nature and extent of the discrimination
Whether the discrimination can be considered of a systemic nature
Whether the discrimination has a legitimate purpose
Whether, and to what extend the discrimination achieve its purpose
Whether, and to what extend the respondent has taken reasonable steps to address the disadvantage or accommodate diversity
Whether the discrimination reasonably and justifiably differentiate between persons according to objective criteria, intrinsic to the activity concerned.
The Promotion of Equality
An essential element of the Bill is that it obliges the state and all persons to promote equality, but the Bill imposes a greater responsibility on the state to ensure that equality is achieved. To this extent, people exercising public power or contracts with the state should adopt and enforce equality plans and prescribed codes of practice. enforce
4. Mechanisms for the implementation of the Bill
Equality Courts
In terms of the Bill, all Magistrates' Courts and High Courts can function as Equality Courts; but will only be operative when the Minister has designated a trained presiding officer and clerk to the court. In specific cases assessors may also be appointed. Section 21 in the Bill determines the powers and functions of the equality court.
A complainant must establish his/ her case of unfair discrimination in relation to the prohibited grounds. The respondent is required to proof to the court that discrimination was fair. The court then determines the fairness or unfairness considering the context of discrimination. The Bill makes provision for appeals and High Court reviews.
5. Issues for Consideration
The Bill prohibits unfair discrimination in respect of health care services and benefits. In terms of the Bill states that no-one can be denied access / refused to health care facilities. This is particularly significant for private hospitals: it is not clear whether denial of access on the basis of inability to pay is fair and reasonable.
The Bill also suggests that government is obliged to provide access to medical facilities, including emergency medical services.
The Constitution states that no-one can be denied emergency medical services. There is no specific provision addressing emergency medical services in the Bill, but it is implied that anyone can use an emergency medical facility that is open; regardless of the ability to pay.
The Bill provides for the ethical treatment of persons subjected to medical research. Medical researchers continue to exploit vulnerable and poor people for human experimentation. Often there is little consideration for ethical considerations such as informed consent, and respect for privacy.
Our interest in the Bill is based on the provisions for health care stated in the bill. It is envisaged that these provisions would enable the public to challenge discriminatory practices in health. These practices include:
Discriminatory practices that threaten physical and mental health and result in the denial of access to health care; inappropriate therapies and inferior quality of care.
Unfair discrimination, and the violation of human rights that are the unintended outcomes of the design and implementation of health care policies, e.g. reproductive health- and population policies often infringe on women's right to information and decision-making based on informed choices.
Gender stereotypes and biases in policy formulation and implementation. The principle of local-community care expressed in the draft national health bill place a disproportionate burden on women as traditional care-givers to provide support to patients. It is especially discriminatory towards poor women who do not have social and economic resources respond to provide alternative means of care.
Equality provisions in relation to education, marital status and employment should have a positive effect on women's health. As a result of women's biological- and social- and economic vulnerability, to e.g. violence and abuse women access to health care services is extremely important.
Economic factors such as poverty force people to live in conditions that contribute to disease, malnutrition and early death.
There is consideration for limitations to access and demand due to the limited resources available, but fiscal policies that result in a decrease in health budgets and the deterioration in the quality and availability of health care services threaten basic equality principles and can be challenged within the framework of this Bill.
There is a strong link between structural injustices in society, such as general disrespect for women and children, and high levels of violence and crime. These injustices contribute towards poor health status.
There is a need to challenge current HIV/AIDS policies that do not adequately consider the individual's right to dignity and privacy. Respect for the rights of people living with HIV/AIDS would facilitate sensitive and humane care.
In the case of mental and physical disability stigmatisation and discrimination should be challenged.
This Bill would focus the attention of health care professionals on the right to equality of health care consumers; and may promote a human rights perspective in the manner they render health care services.
It is envisaged that the Equality legislation would promote the progressive transformation of the SA health system, by providing the legal framework to effectively address discrimination in the health sector.
6. Conclusion
The Equality Bill is intended to give effect to the constitutionally-enshrined right to equality. In principle, there is substantial support for the bill. Despite our concerns around specific issues, the promulgation of the Act may have far-reaching implications for the progressive transformation of the SA society.
Footnotes:
Discrimination is defined as ' any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage; or withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds. '
Harassment is defined as 'unwanted contact which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment; or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation'.
For further information on the, Promotion of Equality and Prevention of Unfair Discrimination Bill, 2000 please contact Luvuyo Msimango at 021 448 8702, or by fax at 021 447 0624, or by Email: luvuyo@philaw.co.za
The PHILA Programme is supported by a grant from the Henry J Kaiser Family Foundation
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