Discrimination and violence against people of diverse sexual orientation and gender identity is a serious problem around the world, and South Africa is not immune despite our progressive laws.
Lesbian, gay, bisexual and transgender (LGBT) workers face discrimination in the labour market throughout their employment cycle. Some common challenges for LGBT workers include:
> Limited access to employment, refusal of employment, dismissals, or denial of training opportunities and promotions, and access to social security
> Evidence of a pay gap between LGBT and non-LGBT workers - same-sex partners rarely enjoy the same benefits as married couples
> Limited avenues for workplace dispute resolution around harassment and bullying
> Animosity from co-workers and supervisors, e.g. name calling, and physical and sexual violence
The International Labour Organization (ILO) is committed to eliminating discrimination in the world of work, promoting workplace diversity and achieving decent work for all women and men, including people of diverse sexual orientation and gender identity. To deliver effectively upon its mandate to end discrimination in the world of work in all its forms, the ILO undertook country-specific studies to identify the extent and forms of discrimination faced by LGBT workers.
This article reflects the study’s findings and recommendations for South Africa, based on research conducted by the Labour Research Service (LRS) and Gay and Lesbian Memory in Action (GALA).
In 2011, the UN Human Rights Council passed the first-ever resolution affirming the right to non-discrimination of LGBT persons, regardless of their gender identity and sexual orientation. South Africa led the negotiation for the LGBT resolution and was the first country in the world to safeguard sexual orientation as a human right (including full marriage equality) in the country's Constitution in 1995.
LGBT workers' rights in South Africa are protected in several laws and codes of practice. The Employment Equity Act (EEA) recognises that discrimination based on sexual orientation can occur directly or indirectly. The Act provides for appropriate procedures to deal with sexual harassment.
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) gives effect to Section 9 (4) of the Constitution to prohibit unfair discrimination and promote equality. The main focus of PEPUDA is to provide for the prevention, prohibition, and elimination of unfair discrimination, hate speech, and harassment. The Act also provides for the establishment of the Equality Courts.
Findings from the study titled, Pride at Work: A study on discrimination at work on the basis of sexual orientation and gender identity in South Africa, indicate that much more work needs to be done in South Africa to make workplaces more welcoming and inclusive for LGBT workers.
It’s difficult for LGBT workers to find information on laws and policies that protect them against discrimination in the labour market and the workplace. Many LGBT workers are unaware or misinformed about their rights or the procedures to follow when those rights have been violated. Trade unions and employers aren’t better off- often they lack key information and are confused about how to address LGBT workplace rights issues. This is due to the lack of clear policies or guidelines and the shortage of human and financial resources.
Key concerns for LGBT people in the workplace
LGBT workers that we interviewed spoke about the stereotypes they encounter in relation to their gender identity.
"After they hear that you are gay, they assume all gay people are sex pests and some people make outrageous claims. This affects how your colleagues relate to you. I decided to challenge this discrimination and pushed management to allow me to educate everyone on LGBT rights." - Nomsa, female (focus group)
"We had our annual awards and my team met to discuss sleeping arrangements at the venue. My manager said: 'Dumelang, I imagine that you would be comfortable in your own room…' We all knew what the manager was referring to, but we did not discuss it." - Dumelang, male (Focus Group).
The stereotyping of LGBT workers is multifaceted, complex and difficult to define in any neat way. For example, while lesbian women were depicted as sexual predators, it was also presumed by co-workers and employers that they would not fall pregnant and therefore were a better employment choice than heterosexual women. Correspondingly, study participants reported that it was also frowned upon for lesbian women to request maternity rights, as this was not seen to fit with their lesbian identities.
One of the recurring themes that emerged was that the onus is often on LGBT individuals to effect change, given the heterosexist workplace cultures and lack of affirming policy implementation and strong leadership in relation to LGBT rights.
Dress code, along with freedom in relation to workplace attire that affirmed the LGBT worker’s identity, was a key factor in participants’ sense of belonging, safety and inclusion in the workplace. Participants shared numerous examples of clothes and appearance particularly those affirming an alternative gender being used to alienate and marginalize LGBT workers in the workplace to the point of dismissal.
“It’s embedded in this idea of how to be professional. It’s in the tiny things: when you’re presenting don’t use so many hand movements. From my personal experience, I’ve always felt the need to "fem up" when I’m being formal." - Vavi, female (Focus group).
Stereotyping and negative responses to gender non-conformity were prevalent across work sectors. This bias detrimentally affected participants’ ability to get on with the job. The gender expression and attire of one study participant in the telecommunications sector drew a negative response from clients.
"It was difficult trying to sell the company's services to people on the streets. People would tell me to go and change myself first and then speak to them about changing their network. How can my relationships have anything to do with me convincing someone to change their service provider?" - Regoma, male (Focus group)
Heteronormative dress codes function as a barrier to employment for LGBT people. Non-normative gender expression through clothing can complicate the initial job interview setting.
For example, Lebo, a lesbian who chooses to be masculine in dress and manner (known as “butch”) remarked how they'd ask about her dress in interviews.
Phiwe felt that the whole issue of dress code, hiring and interviewing was most challenging for butch lesbians who don't ascribe to typical notions of femininity in either appearance or behaviour. “…I dress feminine and I wear make-up. I don’t have a problem until I reveal that I am a lesbian. But it’s difficult for a butch person.”
The issue of safety in the workplace is important for LGBT workers. We heard either personal or other people’s experiences of sexual harassment, derogatory statements, homophobia, along with general religious and cultural prejudices related to LGBT identities.
For many study participants, feeling safe in the workplace required the absence not just of overt discrimination, but also of the pernicious effect of pervasive and invisible norms.
"People utter slurs. It becomes so accepted that it doesn’t feel like it's a personal attack just because it's not done in the 'angry’ attack way." - Vavi, female (Focus group).
The sexualized nature of harassment indicates the high levels of sexual violence, particularly against lesbian and gender-alternative women in South Africa. In the workplace context, this sometimes plays out as the 'sex-for-favours' dynamic.
"When a man approaches me he wants to have sex with me so that he can give me a job. You are insulting me and destroying my life because I didn't choose to live like this. I feel suicidal, naked, lost and empty." - Pelisiwe, female (Focus group).
Even when the LGBT individual’s safety is compromised in the workplace, there's often little clarity on the procedures involved in reporting harassment or violence. When a complaint is lodged, this may also have negative repercussions for the complainant in terms of unresolved tensions in the workplace.
"I go to human resources and lay a complaint. He [the perpetrator] gets a warning, but there’s tension. There will be tension based on which side people take. Someone might not be openly homophobic, but they might support the idea of homophobia. You don’t feel like this is a safe place." Vavi, female (Focus group)
Given that workers spend a large part of their day in the workplace, the question of whether or not to come out is an important one for many LGBT workers. Study participants spoke about being worn down by constant discrimination, prejudice and bias in the workplace. They told of planned and sustained approaches by employers and co-workers to erode their sense of belonging and self-confidence. This involved building up of a case against an LGBT employee so that there was eventually a trail of fabricated accusations. By the time a case reached the Commission for Conciliation Mediation and Arbitration (CCMA), the LGBT employee would have lost confidence as a result of unremitting attacks in the workplace.
The method used by the employers constitutes a slow process of undermining the LGBT employee by picking up on countless small things around which to develop a case. Participants felt that employers were generally aware that direct discrimination could get them in trouble and instead employed subtle ways of removing an LGBT employee.
"I got dismissed at work for the smallest things, not because I was gay. She got rid of me by collecting all the smallest things like coming to work late." - Matti, male (Focus group)
One time I went for a hearing and the bosses said it was ‘just a performance review’. I told them straight up that I am not a fool, that I knew they were building up a case to get rid of me. Sexuality is a big deal at the workplace." - Dumelang, male (Focus group)
Transgender workplace experiences
One of the main challenges cited by both transgender and non-transgender participants was the lack of information on transgender rights in the workplace. A person may enter a workspace as a female but during the course of their employment, they decide to transition to male and they even change their identity documents. Shortly a misunderstanding (or an intentional misunderstanding) on the employer’s part follows. An employer might ask the employee to reapply for the position because they are now male. This is illogical because in essence the employee is the same person and with the same qualifications.
Another challenge faced by transgender workers relates to the very narrow way in which non-discrimination is understood so that gender identity doesn't form part of non-discrimination policies. In this sense, gender is understood in a very normative way as being about men and women. Therefore, sexual orientation and gender identity are conflated with the presumption that they can both be addressed in the same way.
The bodies of transgender workers are also the target of voyeuristic fascination. At workplaces, it’s acceptable to comment on the bodies of transgender workers in a way that is recognised as sexual harassment.
The lack of possibility for legal representation at the CCMA in specific instances has particular implications for transgender workers.
"A CCMA case concerned an employee who was dismissed and asked to reapply for the position. The employer claimed the change from female to male messed up with the company’s Black Economic Empowerment accreditation. Unfortunately, legal representation at a particular level at CCMA is not permitted. A lot of people tend to be fearful that even if they use such processes they'll still face discrimination." - Busi, Gender Dynamix (Interview).
Rule 25 of the CCMA rules provide that in an arbitration hearing a party may appear in person or be represented by a legal practitioner, a director or fellow employee, office-bearer or official of the party’s registered trade union or registered employer’s organisation. If the dispute being arbitrated is about the fairness of a dismissal, however, and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, legal representation is not automatic. Legal practitioners are only allowed in the proceedings if the commissioner and all other parties consent; or the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without a legal representative.
"The CCMA is probably quite progressive, but how do you prepare for the hearing if you don’t know a Commissioner’s level of transphobia and homophobia? You want to be equipped and have a lawyer, but the process of getting a lawyer who isn’t transphobic can be psychologically draining. Also, I don't think there's enough supporting consultation on how legal processes work. It’s a truly frightening experience because you already have that ‘outside infringed person’ type of mentality which, even if you didn’t think you had at the beginning of your transition, you do later." - Cammy, (Transgender focus group)
Good practice workplaces
A good practice workplace could broadly be defined as an inclusive workplace that’s free from stigma and bias and that enables and values the contribution of each employee; where all employees are encouraged to contribute their full potential regardless of their race, gender identity, sexual orientation and other considerations. In this context, LGBT employees feel free to reveal all aspects of their identity if they so wish.
This study found some examples of good practice, most notably the company IBM, which has a very LGBT-friendly workplace.
In 2011, the corporate division of multinational mining company, Anglo American, launched the “Knowing Me, Knowing You” diversity initiative. The objective was to create awareness and foster an environment that respects and celebrates people’s differences. The head of Transformation and Regulatory Affairs at Anglo American offered some insight into her experience as a lesbian in the company: "An ideal workplace is a place where every single employee feels comfortable, safe and free to come to work every day as they are."
The maternity protection policy of The Kelly Group recognises same-sex relationships. The JSE-listed recruitment services company acknowledges that a number of staff members are in same-sex relationships and has made a commitment to extending benefits to all staff members, including those in same-sex relationships.
Discrimination in access to social protection
One of the surprising findings emerging from the study was the general lack of focus on workplace benefits for LGBT workers. LGBT workers themselves rarely mentioned the presence or lack of same-sex benefits and, when we raised the topic in both the in-depth interviews and focus group discussions, it gained little traction.
Overall, there was a general lack of knowledge in relation to social benefits for LGBT workers’ partners. Benefits and the rights to redress in workplaces appeared only to become important for participants when a serious example of discrimination occurred. For example, nominations for provident funds or medical aid only became an issue after people had signed a contract and then discovered that their particular sexual orientation or gender identity were not covered.
Family leave was also an extremely contentious issue for many LGBT workers because it is very limited and generally excludes same-sex family configurations. As a result, while heterosexual and cisgender workers are able to take leave to respond to family demands, LGBT workers were excluded from these benefits and entitlements.
The Basic Conditions of Employment Act (BCEA) – the legislation governing working conditions – continues to be shaped around the normative model of the heterosexual couple.
Collective bargaining and LGBT rights
Collective agreements in South Africa are mostly concerned with wage settlements. Trade unions attempt to negotiate for wages and conditions of service that meet the minimum criteria set in the BCEA. Few agreements include measures to address discrimination. Collective bargaining agreements across private and public sectors don't make any specific mention of discrimination against LGBT workers.
While many trade unions choose to include what are known as “life-partners” alongside spouses in benefits for employees, very few unions mention other issues related to the inclusion and protection of LGBT employment rights. In a preliminary search of union websites, we found only one union that included non-discrimination policies on the grounds of sexual orientation in its employment bargaining. Two other unions mentioned discrimination on the basis of sexual orientation, but provided no applicable strategies or practical examples for protection.
The role of the government was flagged repeatedly by participants as central to forwarding an LGBT workplace rights agenda in preventing discrimination and violence against sexual and gender minorities, and in providing monitoring functions in relation to homophobia and transphobia in the workplace. Examples given by participants included the Department of Labour's Labour Inspectorate and the CCMA.
Need to change laws, policies and practices
Given the gaps and weaknesses in existing policy and practice, there is an urgent need to address gaps in existing legislative and policy frameworks relating to LGBT rights. Two focuses are needed: first, on broad strategies such as education and raising awareness, which would in turn influence policy; and, second, on the specific issues that need to be addressed in workplaces.
Need for education and training
Given the clear lack of information among all stakeholders in relation to LGBT issues, there is an urgent need for training and further information for a wide range of stakeholders on LGBT workplace rights. This would include a wide variety of different educational interventions, ranging from broad dialogues, diversity workshops, to work on mainstreaming LGBT issues in existing programmes.
Development of LGBTI leadership
Findings from the study indicate a clear openness towards LGBT workplace rights. However, the lack of leadership in furthering LGBT workplace rights in South Africa is evident. There is a need for programmes to develop an awareness of LGBT issues and foster leadership in this area and across all sectors, either among LGBT people themselves or their allies.
Submission of an LGBT policy to NEDLAC by the ILO
Given the key role of the National Economic Development and Labour Council (NEDLAC) in terms of furthering LGBT workplace rights, the ILO ought to submit an LGBT policy for discussion by NEDLAC.
> PRIDE at work: A study on discrimination at work on the basis of sexual orientation and gender identity in South Africa