Discrimination is not legal!
For lesbian and bisexual women, workplace discrimination is so routine that it can sometimes be difficult to identify it as abusive behaviour. In South Africa we have certain legal protections, but they do not always get acknowledged in the workplace. It is sometimes difficult to use the law to protect lesbians because of the stereotypes that the community and others have.
What is in our Constitution?
The Constitution of South Africa has been praised for its far reaching rejection of different forms of discrimination, whether on the basis of race, sex, creed or sexual orientation.
The explicit mentioning gives our Bill of Rights a special place in the world: South Africa was the first country to enshrine gay rights in its Constitution and, in so doing, provide its citizens with constitutional protection from discrimination on the basis of their sexual orientation.
What other legislation is there?
The Employment Equity Act (EEA) sets out regulations on affirmative action and discrimination in the workplace to establish equal opportunities for all employees and job applicants. The Act regards any harassment based on gender, sex and sexual orientation as a form of discrimination.
The primary purpose of the Basic Conditions of Employment Act (BCEA) is to regulate and enforce basic conditions of employment in South Africa. The Act refers to life partners and in respect to qualification for Family Responsibility Leave, same sex partners are accorded an equal status to opposite sex partners.
What are the key issues that lesbian and bisexual woman face when entering the workplace?
- A specific idea of what women are supposed to look like (particularly at job interviews) – feminine, dainty, sensuous and eager to please men. They are supposed to “dress like a lady”. Those who do not face social disapproval and even abuse.
- Hostile attitudes and environment – these can range from discriminatory jokes to open harassment. This can impact on a woman’s ability to experience the workplace as a space of self-actualisation, well-being and growth.
- Fewer promotion opportunities.
- A problem with benefits – for example, medical aid and your partner. This might exist legally, but you still have to deal with the person behind the desk
- An invasion of privacy that heterosexual workers do not experience.
- Pressure and possible stigmatisation at social events such as end of year parties and presentations, when partners are invited.
How are women dealing with these issues?
Some real life stories:
The first case is a women worker, *Patricia, who has been living with her life partner for the past 10 years. Her partner is the biological mother of an 11 year old daughter. Patricia has been co-parenting the child since the child was one year old. In all the years of co-parenting she has been unable to access family responsibility leave when required.
At the beginning of this year Patricia was to marry her partner and wanted to access the travel concessions, a company perk extended to employees and their families. The company denied her the travel concession on the grounds that this was not a right extended to same sex couples.
In this case the union took up the case and the company revised its out dated policy to include same sex marriages. Because Patricia could prove that she was co-parenting and sharing the financial responsibility for raising the child the travel concessions and right to Family Responsibility Leave was also granted.
In the second exmanple, *Ayanda is a woman worker who works in an environment where 96% of the workers are men. The few women workers find themselves being constantly sexually propositioned by the male workers. Ayanda, who is a lesbian, has not revealed her sexual orientation to any of her fellow workers and chooses to remain aloof from any discussions on her private life. She has also shown no interest in the sexual advances made by her fellow male workers.
Even without revealing her sexual orientation, however, she has found herself being harassed, intimidated and even threatened with rape by her fellow workers who are also her union comrades. Her non-conforming dress code and attitude to sexual advances has made her a target for the homophobic attitudes of her fellow workers both male and female. It is also important to note that the worker initiating much of the gossip is a fellow female worker.
For Ayanda, life in the workplace has become hell. Management, while claiming to be supportive have failed to address the increasing intimidation. Ayanda has tried to get the union to intervene at a branch level, but even though there have been promises of intervention, nothing has happened.
* Names changed for this article
Who can you contact?
Your union – even if they seem unsupportive, they are bound by the Constitution and the EEA to help you.
The CCMA – for the same reasons.
Behind the Mask – a website that covers lesbian, gay, bisexual, transgendered and intersex issues in Africa
Lesbian and Gay Equality Project - 011 487 3811
GALA - 011 7174 239
OUT LGBT Wellbeing - 012 344 5108/Helpline - 012 3446500
Triangle Project - 021 448 3812/Helpline – 021 422 2500
Durban Lesbian and Gay Community Health Centre – 031 301 2145
· Based on a presentation for the GALA Lesbian Forum on Lesbian Women in the Workplace 2011