Albinism in the South African Workplace: A Labour Law Perspective
Author L Fourie
Affiliations: Lecturer in the Department of Mercantile Law, University of the Free State, LLB LLM PDFP (UFS) PhD Candidate (Leiden University)
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1524 – 1546
Persons living with albinism represent one of society’s most defenceless groups. An estimated one in 5 000 Africans living south of the Sahara are affected by albinism. Persons with albinism experience a lack of melanin, resulting in physical impairments, including poor vision and skin cancers. These disorders set the scene for such people to be subjected to different treatment on the basis of their racial affiliation, colour, and disability — thus requiring that they receive special protection against unfair discrimination. The South African Constitution provides for a right to equality and prohibits the unequal treatment of persons on the basis of their race, colour and disability. This constitutional right is promoted within the labour market by way of the Employment Equity Act, which aims to achieve fair treatment by eliminating unfair discrimination in employment. A vital measure against discrimination that can be executed to achieve equality in the workplace is the reasonable accommodation duty of employers. This duty constitutes one of the affirmative action measures designed to redress disadvantages in employment experienced by designated groups (identified as black people, women and people with disabilities). While the duty to reasonably accommodate is thus legally recognised, no enforceable legal instrument elaborates on the meaning and scope thereof. Furthermore, the law in respect of applying affirmative action measures is silent on how colour and disability should be understood. Bearing in mind that persons affected by albinism will experience difficulties in demonstrating that they fall within the black or disabled category in order to share the benefits of the designated groups, their entitlement to reasonable accommodation will also be restricted. This article aims to illustrate to what degree South African law currently fails to protect persons with albinism in the workplace and in what way it should be amended in order to serve their needs.