Abstract
Discrimination based on sexual orientation in the workplace can take many forms. These can range from interpersonal animosity and offensive jokes, to verbal, physical and even sexual abuse. LGBTQ+ workers have also highlighted discrimination in employment practices, such as having job duties restricted, being passed over for a promotion or not being equitably rewarded for tasks completed. LGBTQ+ employees exposed to these forms of discrimination can experience depression, low self-esteem, limited job satisfaction and emotional withdrawal from work, which is often accompanied by feelings of isolation, stress, and other mental-health related issues.
Considering these challenges, this dissertation aims to critically analyse the regulation of unfair discrimination in the workplace on the ground of sexual orientation and determine its adequacy in protecting employees who may be discriminated against on the ground of sexual orientation. This dissertation entails an analysis of the relevant domestic legislation, case law, scholarly articles, and other relevant sources as well as an assessment of international legal instruments to determine the compliance of the national framework against international standards. Additionally, a comparative analysis with Canada is conducted by considering the regulation of discrimination, in particular unfair discrimination in the workplace on the basis of sexual orientation. From this comparison, best practices drawn from this jurisdiction can lead to recommendations for South Africa’s implementation.
This dissertation argues that the current domestic legal framework needs reform to offer more protection to employees against unfair discrimination in the workplace on the basis of sexual orientation. In addition, the tangible implementation and monitoring of existing laws in practice remains problematic. Through this analysis of inadequate legislation and ineffective implementation of existing legislation, the recommendations concluded in this dissertation suggest measures that employers, trade unions and the legislature could adopt to address the unfair discrimination in the workplace on the basis of sexual orientation to be further inclusive of LGBTQ+ workers.