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Chapter 12

PERSONNEL MATTERS

12.3 EDUCATORS: DISCRIMINATION IN SCHOOLS

12.3.1Legislative and Policy Framework

ACTS

  • The Constitution of the Republic of South Africa (Act 108 of 1996) [SAC]
  • Chapter 2 of The Bill of Rights, Section 29(3)(c) provides for quality education to all citizens, Section 9(3) provides for non-discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, Section 18 provides for freedom of association [BoR]
  • The South African Schools Act, No. 84 of 1996 [SASA]
  • The National Education Policy Act, 1996 (Act No. 27 of 1996) [NEPA]
  • Employment of Educators Act 76 of 1998 [EEA]
  • South African Council for Educators Act 31 of 2000 [SACE]
  • Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 [PEPUD]

 

REGULATIONS

  • Employment Equity Act, 1998, General Administrative Regulations, 2009 [NR ADMIN]

 

GUIDELINES

  • Personnel Administration Measures [PAM]
  • Code of Professional Ethics [SACE Ethics]
  • LGBTQ Guidelines [LGBTQ]

 

OTHER SOURCES

  • Values in Action, (Department of Basic Education, 2012) [Reference C VALUES]
  • Sexual Orientation and Gender Identity in Schools [Reference C  S ORIENTATION]

12.3.2Framework for the Development of School Policy on Educators: Discrimination in Schools

  1. Summary of the Promotion of Equality and Prevention of Unfair Discrimination Act, no. 4 of 2000
    The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 is a law preventing individuals, companies, organizations and government departments from discriminating against anyone on the grounds of race, gender, disability, sexual orientation or religion/belief.

    • What Is Racial Discrimination?
      According to the Act, racial discrimination can be any of the following acts:

      • Hate speech, i.e. spreading hatred or distrust towards a particular group of people;
      • Providing inferior services to certain groups or individuals: If a person or institution provides poorer services to a person or group, and it can be shown that it is because of that person or group’s race, then the person or institution has broken the law.
      • Denying access to services and contracts, based on a person’s race.
      • Promoting the people of one race only, using methods that may appear legitimate, but have the effect of excluding all people of another race group.
    • What Is Gender Discrimination?
      • Refusing a person access to activities because of their race or gender is discrimination.
      • Gender discrimination means discriminating against someone because of their gender, i.e. the fact that they are male or female. Both males and females can be discriminated against, but in practice, females are more often the victims of gender discrimination.
      • According to the Act, any traditional, customary or religious practice that puts women and girls on an unequal footing with men is gender discrimination. This includes any of the following:
        • female genital mutilation;
        • preventing women from inheriting property;
        • any policy which denies women land rights and finances;
        • preventing pregnant girls and women from continuing with their education. This means that a schoolgirl who falls pregnant may not be barred from school;
        • preventing women from remaining in employment because of pregnancy; and/or
        • preventing women from doing certain types of jobs because they are women.
    • What Is Discrimination on the Grounds of Disability?
      Discrimination on the grounds of disability means denying a person with a disability access to jobs, education and facilities because of their disability. So, the owners of an institution that has no physical access for the disabled, such as wheelchair ramps, is practising discrimination.
    • Equality Courts
      • The Act establishes Equality Courts, where discrimination cases are heard. Any High Court or Magistrate’s Court can be an Equality Court once the staff have received the required training.
      • Any person or institution, acting on their own behalf or on behalf of someone else, can take a case to the Equality Court. In Equality Court cases, the respondent, not the complainant, bears the onus of proof. This means that it is up to the respondent (the one accused of discrimination) to prove that he or she is innocent. If he or she cannot do so, the court holds him or her guilty of discrimination.
  2. Summary of the Employment Equity Act, 55 of 1998, issued in terms of Section 25(1)
    • Chapter 1 – Definitions, purpose, interpretation and application
      • Purpose of the Act: Section 2
        The purpose of the Act is to achieve equity in the workplace, by

        • promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
        • implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, to ensure their equitable representation in all occupational categories and levels in the workforce.
      • Application of the Act: Section 4
        • Chapter II (sections 5 – 11) applies to all employers and employees.
        • Chapter III (sections 12 – 27) applies to designated employers.
        • A designated employer means an employer who employs 50 or more employees, or has a total annual turnover as reflected in Schedule 4 of the Act, municipalities and organs of state. Employers can also volunteer to become designated employers.
        • A designated group means black people, women, or people with disabilities.
        • The South African National Defence Force, National Intelligence Agency, and South African Secret Services are excluded from this Act.
    • Chapter 2 – Prohibition of Unfair Discrimination
      • No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.
      • It is not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.
      • Medical Testing: Section 7
        • Medical testing of an employee is permissible only when legislation requires testing or when this is justifiable for various reasons.
        • HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.
      • Psychological Testing: Section 8
        Psychological testing and similar assessments are prohibited, unless the test is scientifically valid and reliable, can be applied fairly to all employees, and is not biased against any employee or group.
      • Disputes concerning this Chapter: Section 10
        • An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation. This must be done within six months of the alleged discrimination (or testing)..
        • If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute to arbitration.
        • Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.
    • Chapter 3 – Affirmative Action
      • Duties of a Designated Employer: Section 13
        • A designated employer must implement affirmative action measures for designated groups to achieve employment equity.
        • In order to implement affirmative action measures, a designated employer must:
          • consult with employees;
          • conduct an analysis;
          • prepare an employment equity plan; and
          • report to the Director-General on progress made in the implementation of the plan.
      • Affirmative Action measures: Section 15
        • Affirmative action measures are measures intended to ensure that suitably qualified employees from designated groups have equal employment opportunity and are equitably represented in all occupational categories and levels of the workforce.
        • Such measures must include:
          • identification and elimination of barriers with an adverse impact on designated groups;
          • measures which promote diversity;
          • making reasonable accommodation for people from designated groups;
          • retention, development and training of designated groups (including skills development); and
          • preferential treatment and numerical goals to ensure equitable representation. This excludes quotas.
      • Designated employers are not required to take any decision regarding an employment policy or practice that would establish an absolute barrier to prospective or continued employment or advancement of people not from designated groups.
      • Consultation: Sections 16 and 17
        A designated employer must take reasonable steps to consult with representatives of employees representing the diverse interests of the workforce on the conducting of an analysis, preparation and implementation of a plan, and on reporting to the Director-General.
      • Disclosure of Information: Section 18
        To ensure meaningful consultation, the employer must disclose relevant information to the consulting parties, subject to section 16 of the Labour Relations Act 66 of 1995.
      • Analysis: Section 19
        A designated employer must conduct an analysis of employment policies, practices, procedures, and working environment so as to identify employment barriers that adversely affect members of designated groups. The analysis must also include the development of a workforce profile to determine to what extent designated groups are under-represented in the workplace.
      • Employment Equity Plan: Section 20
        A designated employer must prepare and implement a plan to achieve employment equity, which must:

        • have objectives for each year of the plan;
        • include affirmative action measures;
        • have numerical goals for achieving equitable representation;
        • have a timetable for each year;
        • have internal monitoring and evaluation procedures, including internal dispute resolution mechanisms; and
        • identify persons, including senior managers, to monitor and implement the plan.
      • Report : Section 21
        • An employer who employs fewer than 150 employees must submit its first report to the Director-General within 12 months after the commencement of the Act, and thereafter every 2 years on the first working day of October.
        • An employer who employers 150 or more employees, must submit its first report 6 months after the commencement of the Act, and thereafter every year on the first working day of October.
      • Designated employer must assign a manager: Section 24
        A designated employer must assign one or more senior managers to ensure implementation and monitoring of the employment equity plan and must make available necessary resources for this purpose.
      • Income Differentials : Section 27
        A statement of remuneration and benefits received in each occupational category and level of the workforce must be submitted by a designated employer to the Employment Conditions Commission (ECC).
        Where there are disproportionate income differentials, a designated employer must take measures to reduce it progressively. Such measures may include collective bargaining, compliance with sectoral determinations (section 51 of the Basic Conditions of Employment Act); the application of norms and benchmarks recommended by the ECC, relevant measures contained in skills development legislation, and any other appropriate steps.

12.3.3Guidelines for The Development Of School Policy On Discrimination In Schools

  1. What legislation states on discrimination in schools
    • The Constitution states that no one can be unfairly discriminated against on the basis of their culture. This means that all cultures are equally valued. (Chapter 2, Bill of Rights, ss. 9(1), 9(2), 9(3), 9(4), (30) and (31))
      The South African Schools Act is also very clear that culture cannot be a reason to exclude any learner from a school.  This does not only apply to the different cultures of South Africa. It also applies to those who are from other countries. (Preamble to the South African Schools Act, no. 84 of 1996)
    • The Constitution states that no one can be unfairly discriminated against on the basis of their religion. (Chapter 2, Bill of Rights, ss. 9(1), 9(2), 9(3), 9(4), and (15))
      In the South African School Act (section 7), it states that: “…religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.”
    • The Constitution states that no one can be unfairly discriminated against on the basis of the language they use to communicate. (Chapter 2, Bill of Rights, ss. 9(1), 9(2), 9(3), 9(4) and (30))
      The Constitution gives official status to 12 South African languages, including South African Sign Language. (Constitution of the Republic of South Africa, No. 108 of 1996, section 6)
      The Constitution provides for redress and equality in the use and development of South African languages.
      Some of the laws guiding languages and their use and status at schools include:

      • The governing body may determine the language policy of the school subject to the Constitution and other relevant laws.
      • No form of racial discrimination may be practiced when implementing a school’s language policy. (South African Schools Act, no. 84 of 1996 – section 6(3)
      • Home language/s must be maintained while opportunities to learn additional language/s are offered.
      • Sign Language has the status of an official language for purposes of learning at a school. (South African Schools Act, no. 84 of 1996 – section 6(4)
      • The learning and teaching of all other languages required by learners must be supported.
      • Languages other than South Africa’s official languages can be offered as school subjects.
    • The Constitution states that no one can be unfairly discriminated against on the basis of their race. (Chapter 2, Bill of Rights, ss. 9(1), 9(2), 9(3) and 9(4))
      • The South African Schools Act is also very clear that race cannot be a reason to exclude any learner from the school. This does not only apply to the different races of South Africa. It also applies to those from other countries. (South African Schools Act, no. 84 of 1996 – section 6(3)
    • The Constitution states that no one can be unfairly discriminated against on the basis of their gender or sexual orientation.  (Chapter 2, Bill of Rights, ss. 9(1), 9(2), 9(3) and 9(4))
      • Under the Equality clause (Section 9) of the South African Constitution, we may not discriminate directly or indirectly against anyone because of their gender or sexual orientation.
      • The Constitution (Chapter 2, Bill of Rights, ss. 9(2), 9(3) and 9(4)) and the South African Schools Act (South African Schools Act, no. 84 of 1996 – section 20(8) are very clear that all policies and practices at schools must support equity and equality between genders.
      • Important issues linked to human rights and gender that schools must be aware of, and adopt policies for, include:
        • Sexual harassment;
        • Gender-based violence; and
        • Learner pregnancies
      • Sexual orientation refers to emotional, romantic or sexual attraction to men; women; both genders; neither gender; or another gender.
      • Some people are attracted to the opposite sex. We refer to these people as heterosexuals or straight.
      • Some people do not experience sexual attraction to another person.  We refer to these people as asexual.
      • Some people are attracted to the same sex. We refer to these people as homosexuals. Men who are attracted to men are called gay. Women who are attracted to women are called lesbians.
      • Some people are attracted to both sexes. We refer to these people as bisexuals.
      • Sexual orientation includes gender identity. Some people have a heterosexual gender identity (male-female). Some people identify with the gender of the opposite sex. That is, a man – with a male anatomy – feels more like a woman; or a woman – a female anatomy – who feels more like a man. We refer to these people as having a transgender identity.
      • Some people choose to change their sex anatomy by having a sex change operation and hormone treatment. We refer to these people as transsexuals.
    • Homosexuality
      How does the law protect the rights of homosexuals?
      The Prevention of Discrimination and Promotion of Equality Act of 2000 prohibits discrimination, including ‘hate speech’ (section 2(c), 2(e) and 10), on the basis of, amongst other grounds, gender and sexual orientation.

      • Marriage
        • The Act (The Prevention of Discrimination and Promotion of Equality Act of 2000, s.1(1)(XV)  also redefines the word “marital relationship” to include people who are in a same-sex relationship.
        • Homosexuals can marry in a magistrate’s court.
        • The Act also opens the way for same-sex couples to adopt children.
        • Homosexual partners can receive pensions and other benefits from state institutions and foreign homosexual partners of South Africans are recognised as married for the purposes of receiving permanent residence.
      • Work
        It is a criminal offence for individuals and institutions to discriminate against homosexuals by refusing to employ them or give them the same benefits as married couples.
      • Clubs and institutions
        Homosexuals may not be denied membership to any private clubs and institutions. This includes churches, depending on the interpretation given by the special ‘Equality Courts’ (The Prevention of Discrimination and Promotion of Equality Act of 2000, s.16) established to adjudicate such matters.
    • The principle of inclusion is one of the fundamental pillars on which our education system is built.
      In the Education White Paper 6 on Special Needs Education: Building an Inclusive Education and Training System (2001), inclusive education is about:

      • Acknowledging that all children and youth can learn and that all children and youth need support.
      • Accepting and respecting that all learners are different in some way and have different learning needs which are equally valued and an ordinary part of our human experience.
      • Enabling education structures, systems and learning methodologies to meet the needs of all learners.
      • Acknowledging and respecting differences in learners whether due to age, gender, ethnicity, language, class, and disability or HIV status.
      • Changing attitudes, behaviour, teaching methods, curricula and the environment to meet the needs of all learners.
      • Maximising the participation of all learners in the culture and the curricula of educational institutions and uncovering and minimising barriers to learning.
      • Empowering learners by developing their individual strengths and enabling them to participate critically in the process of learning.
      • Acknowledging that learning also occurs in the home and community, and within formal and informal modes and structures.
    • Both the Constitution (Section 29(1)) and the South African Schools Act (Section 5(1))state that everyone has the right to an education, and cannot be excluded through unfair discrimination – as well as exclusion on the basis of one’s HIV status.
      The National Policy on HIV and AIDS for public schools and FET institutions states:

      • Learners living with HIV and AIDS should lead as full a life as possible and should not be denied the opportunity to receive an education to the maximum of their ability (Section 2.6).
      • Learners have the right to attend the school or FET College of their choice, and may not be denied admission because of their HIV or AIDS status. The school or SGB cannot force a learner to take an HIV test (Section 5.1).
      • Learners living with HIV and AIDS are expected to attend classes, and their needs must, as far as possible, be accommodated by the school/FET institution (Section 5.2).
      • Learners and school staff with HIV and AIDS should be treated in a just, humane and life-affirming way.
      • Only a suitably qualified person (such as a medical doctor) can decide whether a learner or school staff member presents a significant health risk to others. If such a decision is made, then appropriate steps must be taken to ensure that such persons do not put others at risk.
    • The South African Schools Act (Section 8 (1) states that: “A governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school”.
      All members of the school community should be clear about the kinds of behaviour the school considers acceptable, and unacceptable.
  2. Example of a School Policy Statement (Adopted and adapted from: Education Rights for Learners, Parents and Educators, Book 16 – The Centre for Education Rights and Transformation, University of Johannesburg.)
    The Governing Body regards the promotion of human rights in the school as important. It is through the promotion of the values in our constitution that we are able to create a safe and secure learning environment in which all learners and staff members can express themselves respectfully and realise their full potential as remarkable human beings.

    • Aims and values
      Our school welcomes its duties under the South African Constitution and the South African Schools Act. These duties reflect our core aims and values. We are committed to:

      • Promote the rights of human beings as expressed in the Constitution and Bill of Rights.
      • Promoting equality of opportunity.
      • Promoting good relationships between members of different genders, sexual orientations, foreigners, cultural, racial and religious groups.
      • Eliminating unlawful discrimination based on gender, sexual orientation, national origin, racial group and religious association.
    • Responsibilities
      All members of the school community have a responsibility to comply with this policy and its procedures and behave in a manner that respects all people.
      The implementation of this policy and its ongoing monitoring and evaluation is the responsibility of the Wellness and Safety Committee of the school. This committee is:

      • Accountable to the management of the school for its implementation.
      • Responsible for resolving health and wellness, and the safety and security concerns brought to their attention.
    • Staff and learners
      Every learner should be helped to develop a sense of personal pride and identity in which they are confident and respectful towards other people’s identities.

      • Learners are expected to:
        • Report any behaviour that harms others immediately to their teachers, HODs or Principal.
        • Take reasonable care for the wellbeing and safety of themselves and other persons who may be affected by their acts or omissions.
      • The School Governing Body (SGB) is responsible for ensuring that:
        • The school fulfils its legal responsibilities in upholding respect for human rights.
        • This policy and its related procedures and strategies are implemented, monitored and reviewed regularly.
      • All staff members are expected to:
        • Deal with incidents of discrimination that may occur by reporting the incidents directly to the Principal.
        • Promote equal opportunities and good relations amongst all members of the school community.
        • Incorporate principles of equality and respect for diversity in all aspects of their work.
        • Create teaching lesson plans to include exploration of diversity and non-discrimination.
        • Promote school activities that respectfully engage with the experiences of people based on gender, sexual orientation, national origin, ‘race’ and religion.
        • Teach respect and appreciation for diversity and equality.
        • Be able to recognise and tackle discrimination, bias and stereotyping.
        • Provide confidentiality in reporting all forms of harassment and discrimination.
        • Know that harassment and discrimination will result in action.
      • The School Management Team (SMT) is expected to:
        • Ensure that the policy is implemented.
        • Report to the principal and SGB on matters covered in this policy.
        • Establish competence and awareness regarding wellness and safety of learners, staff and parents
        • Attend to effective communication and conflict management training.
        • Ensure that all staff and learners report potential issues of discrimination immediately.
        • Implement appropriate wellness and safety management systems throughout the school.
        • Adequately train all staff members and students on issues of diversity and the importance of protecting the rights of all from discrimination.
        • Ensure that the policy is communicated to all new staff, learners and parents.
        • Take appropriate action in any case of unlawful discrimination.
    • Policy planning and review
      • Ensure that the school policy informs all policies and procedures adopted by the school. For example:
        The principal will ensure that the policy’s principles and procedures (as listed above) apply to the full range of the school’s policies and practices including those that are concerned with:

        • learners progress, attainment and assessment;
        • behaviour, discipline and codes of conduct ;
        • teaching and learning;
        • admissions and attendance;
        • staff recruitment and professional development.
      • The school staff must commit to work with parents and guardians and with the wider community, to challenge and eliminate all forms of discrimination. We will commit to personally follow and promote good practice. We will promote equality and challenge discrimination in many ways including:
        • Developing opportunities to celebrate the richness and diversity of different identities and cultures;
        • Reporting all incidents of discrimination;
        • Eliminating the use of negative images, language and stereotypes used to offend people on the grounds of gender, sexual orientation, national origin, racial group and religious association;
        • Promoting the talents and skills of all members of our school community in academic activity, sport, arts and culture and leadership.
    • Implementing policy
      We will incorporate action plans that specifically speak to the protection of rights for gender, sexual orientation, refugee status, racial group and religious association. These action plans will be included in the School Improvement Plan. This includes:

      • Identification of the resources required to meet the needs of staff and learners in appropriate ways;
      • The means by which the school’s policy and procedures are made known to staff, learners, parents, guardians and the wider community;
      • The frequency with which the policy and action plans will be reviewed to ensure that they remain relevant in creating a positive school culture free of discrimination.
    • Breaches of the school policy
      • Measures for persons found guilty in violation of policy can consist of verbal reprimand, suspension or expulsion as specified in the Code of Conduct.
      • All incidents of discrimination will be regarded as serious matters, and dealt with as stated in the school’s Code of Conduct.
      • Learners who unfairly discriminate or harm another person because of their gender identity or sexual orientation should expect to face the negative consequences of their behaviour as specified in the school’s Code of Conduct.