Unfair Discrimination Against Transsexuals
Employees are increasingly more and more prepared to stand up to unfair employers and take them on based on unfair discrimination. This year was no exception. Two particular cases dealt with discrimination against transsexuals in the work environment. The first was that of Atkins / Datacentrix (Pty) Ltd (2009) 18 LC 8.29.3 and  4 BLLR 351 (LC). The rejection of the arguments presented by this employer confirms the fact that unfair discrimination based on gender and sexual orientation will not be tolerated by our courts.
After accepting an offer of employment with the respondent employer as an IT technician, the applicant employee announced that he was planning to undergo a sex change from male to female. The employer then cancelled the contract, contending that his failure to inform it of the plan before accepting its offer or during the interview constituted a dishonest misrepresentation, warranting cancellation.
The applicant claimed for discrimination on the ground of sexual orientation and an automatically unfair dismissal. The respondent denied that the applicant’s intention to have a sex change operation had anything to do with its decision to terminate the contract, and claimed that he had been dismissed for dishonesty. Interesting enough, this case turned mainly on the question as to whether the applicant was under any duty to disclose to the respondent the fact that he was in the process of undergoing a gender-reassignment process.
With regard to unfair discrimination the court referred to section 5 of the EEA which provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. Section 6 prohibits unfair discrimination and provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including gender, sex and sexual orientation.
The court found that the LRA does not distinguish between males and females. A transsexual who undergoes a gender reassignment process would continue to remain an employee and the prohibition against unfair discrimination would still exist unless the respondent could show that the discrimination was fair. The LRA, the Employment Equity Act and Constitution prevent employees being discriminated against on the basis of their sex, gender and other grounds. The only defence against discrimination would be fair discrimination. The employer did not rely on fair discrimination as a defence but simply that there was a duty on the applicant to have disclosed his intentions but had failed to do so and was therefore in breach of his common law duties for non-disclosure.
The employee also claimed an automatic unfair dismissal based on discriminatory grounds. It is trite that section 187 of the LRA imposes an evidential burden upon the applicant to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It is then for the respondent to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 of the LRA for constituting an automatically unfair dismissal.
The Court found that it is clear from the facts placed before it that the applicant is a competent employee. The only inference that could be drawn from the facts was that the respondent would not have employed the applicant in the first place had he disclosed his true intentions. There was no legal duty on the employee to disclose that he wanted to undergo the process. He was not dishonest and did not lie. He was working in the IT industry where the issue of his sex or gender is not important.
The court accepted that the employee’s claim was founded both in terms of the LRA for the unfair discrimination dismissal and the EEA for the unfair discrimination. The employer was guilty of both. The employee was awarded R100 000 compensation for the automatically unfair dismissal claim, furthermore, the respondent was in terms of section 50(2)(c) of the EEA directed to take steps to prevent the same unfair discrimination or any similar practice occurring in respect of other employees, and to report to the Court within three months from the date of this order on the steps so taken. The respondent was also in terms of section 50(1) and 50(2) of the EEA directed to apologise to the applicant in writing within one week of the order being made.
The second case where the court expressed itself strongly against the employer’s discriminatory conduct, is that of Ehlers v Bohler Uddeholm Africa (Pty) Ltd (2010) 19 LC 8.29.1. In the previous case the employer used the failure to disclose the transsexual operation as ground for cancellation. In the case the employer tried to use operational requirements, specifically the needs of the industry which, as it was argued, wanted a man to do sales to them in the steel industry. The applicant is a transsexual who brought an automatic unfair dismissal dispute to the court in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA). She wanted reinstatement and damages in terms of the LRA and compensation and damages in terms of the Employment Equity Act 55 of 1998 (the EEA) and other ancillary relief.
The respondent denied that the applicant’s dismissal was automatically unfair and pleaded that her dismissal was an operational decision made by it. The applicant performed well with the employer until she started with her sex change. During the ensuing time period, conflict sprang up with another employee, derogatory remarks were made, resulting into a grievance. This resulted in some relationship disturbances grievances and her subsequent dismissal.
The applicant’s dismissal is not in dispute. What was in dispute again was the true reason for the dismissal. The employer contended that her job required a man to do it. According to the employer she had to be stopped from living out her threats to wear woman’s clothes, before she could harm the respondent. The court strongly ruled against the employer when it said: “We live in a constitutional democracy where the Constitution is the supreme law of the land. This is a factor overlooked by both the chairperson of the appeal and the grievance. I find it rather appalling that the respondent had in the first place an agreement with the applicant that she would wear male clothes when she consults with clients.
The justification given for this request is that the engineering industry is male dominated and they would not take kindly if the applicant came to see them wearing female clothes. This is reminiscent of the dark ages or to our most recent past where there were job reservations and certain jobs were reserved for white people only and white males in particular. It is shocking that such sentiments still do exist. Even if they do exist, it is shocking that there are still perceptions that only males can do certain jobs”.
The applicant was not employed in a specialist area where there were inherent requirements of the job that dictated her sex or gender. The sex change operation would not affect her competency as an employee. She remains an employee despite her sex change. She was employed as sales representative who had excelled in her field. The court found that the operational requirements as set by the employer amounted to nothing but a dismissal because it might upset some backward customers if she asserts her femininity by wearing female clothes. This was unfair. The fact that the applicant was asked to hide that she is a transsexual is per se unfair discrimination. The fact that she has agreed to do so does not legitimise the discrimination that she endured”.