The Idea Behind Adopting The Eoa Law Employment Essay

Published Date: 02 Nov 2017

INTRODUCTION

The last decade has witnessed a proliferation of anti-discriminatory legislations in many countries. Mauritius, being one of them, has never ceased to work on the promotion and protection of Human Rights following its independence and the adoption of its supreme law, the Constitution in 1968. The solid proof lies in the enshrinement of the protection of fundamental rights and freedoms [1] in Chapter II of the Constitution, whereby its sections 3 and 16 expressly guarantee protection against discrimination.

The Mauritian anti-discrimination provisions are reinforced by its obligations under the main International Covenants on Human Rights, including: the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights [2] (ICCPR), International Covenant on Economic, Social and Cultural Rights [3] (ICESCR), Convention on Elimination of All forms of Racial Discrimination [4] (CERD), Convention on Elimination of all forms of Discrimination against Women [5] (CEDAW), African Commission on Human and People’s Rights [6] (ACHPR), among others.

Following the dualist model, [7] Mauritius has however not directly incorporated such international instruments. [8] Instead, substantial provisions of the conventions, though ascribed in a narrower scope, have been integrated in our domestic law through specific legislations, namely; the Employment Rights Act 2008 (ERiA), Criminal Code 1838, [9] Civil Code, inter alia. Conscious of the sheer importance of the protection against discrimination, the legislature promulgated the Equal Opportunities Act 2008 [10] (EOA), which merges the former laws on discrimination into a unique legislation.

Concept of Equal Opportunity

The principle of non-discrimination and equality are correlated and form an integral part of international human rights law and Jus Cogens. Equality is the principle of treating "equally what are equal and unequally what are unequal". [11] Even the Bible preaches equality in Genesis. [12] 

Equality should however not be confused with ‘equal opportunity’. Equal opportunity is a vision of equality that seeks to ensure that every individual, regardless of his/her social background or any other status, has the same opportunity to succeed and progress in society. [13] Going further than just equal rights, equal opportunities aim at fostering people who are subject to discrimination to guarantee them fair treatment.

The Idea behind adopting the EOA

Every individual has fundamental human rights which require protection and promotion by the law. Human beings have always been different, be it in skills, talents or abilities, thus; no legislation can make everyone equal. However, one thing that all humans have in common is dignity; hence Article 1 of the UDHR provides that:

"All Human beings are born free and equal in dignity and rights."

It was with this view that the Government designed this piece of legislation, giving "the chance to everybody to carry on his/her career without being penalised by factors such as religion or sex." [14] 

The EOA came into force in 2012, replacing the former Sex Discrimination Act 2002 (SDA). It establishes a general framework for the protection against discrimination on the grounds of status.

Status is defined in Section 2 of the EOA as:

"‘Status’ means age, caste, colour, creed, ethnic origin, impairment, marital status, place of origin, political opinion, race, sex or sexual orientation."

The EOA breakdowns and eliminates discriminatory structures in all spheres of life and places meritocracy as the backbone of all activities; whereby individuals will be awarded and judged according to their talents, competence and "désire de travailler", [15] thus providing equal chances for everyone.

The Content of the EOA

The Act is divided into 8 parts:

PART I – PRELIMINARY

PART II – FORMS OF DISCRIMINATION

PART III – EMPLOYMENT ACTIVITIES

PART IV – OTHER ACTIVITIES

PART V – SEXUAL HARRASSMENT

PART VI – COMMISSION

PART VII – EQUAL OPPORTUNITIES TRIBUNAL

PART VIII – MISCELLANEOUS

Part II, III, and IV of the EOA set out discrimination and distinguish those protected under employment activities and other undertakings: such as companies, partnerships, sports activities or in the educational sector.

Part V elaborates on sexual harassment and together with a list, clearly elaborating acts which may constitute such harassment. Part VI and VII further provides for institutions, created under the EOA to enforce the legislation and deal with complaints.

Moreover, the EOA repealed sections 16 and 18(1)(b) of the Training and Employment of the Disabled Persons Act 1996 (TEDPA) and the SDA, which provided for only one form of discrimination. In turn, provisions dealing with victimization and sexual harassment in the SDA were transferred to the EOA, indicating the importance of the EOA in being the central legislation combatting discrimination.

The EOA is thus a significant piece of legislation for social justice and caters all aspects of discrimination at the same time. As a formulation of the principle of equality, Justice Rault J. colourfully pointed out in the case of Police v Rose: [16] 

"Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently." [17] 

Hence, to what extent does the EOA ensure equality? It shall be further seen that the EOA provides for minute exceptions where people may be treated differently. So, can it be said that a zero-discrimination has or may be achieved?

This dissertation will analyse the extent to which the EOA guarantees protection against discrimination. To illustrate this study, we will focus primarily on the notion of discrimination, [18] together with its scope [19] and mechanisms, [20] while constantly referring to the approaches of different countries, especially since Mauritius has a mixed legal system. In the last part, several aspects in the Act will be evaluated, in order to analyse its effectiveness and involvement in the fight against discrimination. [21] 

CHAPTER 1: PROTECTION FROM DISCRIMINATION

1.1 Overview

This chapter describes discrimination (the corollary of the EOA), while analysing its different forms, grounds and conditions for a discriminatory act to fall under the purview of the EOA.

1.2 Definition

Does discrimination occur when CPE students are awarded star schools on the basis of their results? [22] 

A just definition of the term discrimination was given in the case of Matadeen v Pointu, [23] in which redress was accordingly sought on the ground of discrimination regarding CPE exams, it was held that:

"‘Discriminatory’ is defined in section 16(3) to mean the affording of different treatment to different persons "attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex.""

In this case their Lordships held that there was no discrimination, since the matter "did not fall within any of these descriptions."

1.2.1 Reason for an EOA

The Constitution, by virtue of sections 3 and 16, already caters for discrimination; [24] section 17 has further given wide powers to the Supreme Court [25] whereby any person who alleges an infringement of his rights under sections 3 to 16 may apply for redress. [26] Therefore the question arising is: what is the need for an EOA?

The Constitutional anti-discriminatory framework, although conceived four decades ago, has its protection limited to only seven grounds, namely:

1. Race

2. Caste

3. Place of origin

4. Political opinion

5. Colour

6. Creed

7. Sex

Moreover, in the Privy Council case of Maharaj v AG of Trinidad and Tobago, [27] Lord Diplock observed that the Constitution of Trinidad and Tobago is only limited to public law and not private law. Its Constitution, similar to Mauritius, provided protection against discrimination on narrow grounds. This case was the keystone for the promulgation of an EOA in Trinidad and Tobago in 2001, which may act as a model for Mauritius, since both countries have similar cultural-diversity and legal framework.

The case of R.C Diocese of Port-Louis v MOE [28] held that:

"Section 16 cannot… be interpreted... to mean that a person acting in a private capacity is… entitled to practice discrimination."

Therefore unlike the South African Constitution, [29] which guarantees protection against discrimination in both sectors, section 16 only protects against discrimination by public officials, [30] and does not distinguish between citizens and non-citizens. [31] 

Hence, the scope needed widening. The legislature accordingly promulgated the EOA to consolidate the self-contained provision of section 16 and backs it up with additional grounds of discrimination. It is thus a type of ‘umbrella-legislation’ which covers what the Constitution does not.

1.3 Forms of Discrimination

The EOA provides for three types of unlawful discrimination:

Direct discrimination [32] arises when a person is treated "less favourably" [33] than another, in a similar situation on the ground of his/her status. The test for determining direct discrimination, was laid-down in the case of R v Birmingham, [34] whereby:

There must be a discriminatory act.

Had it not been for the victim’s status, he/she would not have been treated less favourably.

In practice, the discriminatory behaviour is more subtle. This is why the EOA also sanctions indirect discrimination.

Indirect discrimination [35] involves the imposition of a condition that apparently makes no differentiation, but has an adverse effect, disadvantaging a person due to his/her status.

For example, in the case of Mandla v Dowell-Lee, [36] obliging Sikh bus conductors to wear company caps was considered as indirect discrimination. Such conditions are sometimes tailored in a way to penalise a particular victim.

Discrimination by victimization [37] occurs where a person is treated less favourably when he threatens, is suspected to have or has reported any discriminatory acts performed by the discriminator.

In the case of McCammon v Sally [38] an employee being dismissed due to an accusation of racism against his employer was held to have been victimised on grounds of race.

These types of discrimination apply, unlike a widespread belief, not only in employment, but in every sphere, as per sections 5, 6 and 7.

As mentioned earlier, the EOA prohibits discrimination on the ground of status, which includes:

1.4 Grounds of discrimination

In order to properly define the grounds of discrimination, case laws and statutes from Mauritius as well as other jurisdictions will be used. This is because the EOA contains no express definition of such grounds. Though, a clear definition of the grounds, as provided by the EOA of Trinidad and Tobago, would have shed light for statutory interpretation.

Age

Age discrimination is an issue perceived mostly by elderly persons. Sometimes, as soon as the receptionist is aging and is no longer as attractive, she is sent in the 'backroom’.

In the Case of Homer v Chief Constable of West Yorkshire Police, [39] reserving promotion opportunities only for young workers constituted indirect age discrimination.

Unlike the Employment Act 1946 (US), which prohibits age discrimination touching people who are 40 years old or older, the EOA provides protections for all individuals, regardless of their age.

Caste

In Mauritius, caste discrimination finds its origin from a feudal structure of India, which has unfortunately been cultivated. It finds its origin from the Spanish word ‘casta’, meaning lineage, race or breed. [40] 

Colour

The word ‘colour’ here means skin colour. Such discrimination occurs mostly when someone is treated differently due to his/her skin colour, or explicitly referred to as ‘black’ [41] or even ‘white’. [42] 

Creed

Creed may be interpreted as ‘religious creed’ [43] or ‘religion’. [44] Section 11 of the Constitution also protects the Freedom of conscience, which includes the terms religion and belief.

In the case of Bishop of R.C Diocese of Port-Louis v Tengur [45] it was held that:

"…a religious authority running secondary schools was not entitled to reserve 50% of the seats to children belonging to a particular religion." [46] 

Since Mauritius is a multiracial island, such protection also focuses on religious symbols and dress-codes, unlike in Denmark, Belgium and France. [47] In France face-covering in public places is also prohibited. [48] 

Ethnic origin

It involves discriminating against individuals due to their social background. Such classification includes: [49] 

Common language

Cultural traditions

Geographical origin.

Unfavourable treatment due to one’s surname, as expressly provided in the "code du travail" in France, [50] may be included under this ground. [51] 

Impairment

This ground mostly concerns persons with physical, mental disorder or disease. This ground will be further elaborated in Chapter 2.3.

Marital status

The EOA also recognises discrimination based on an individual being single, [52] civilly or religiously married, married but living separately, divorced, widowed and single parent. [53] 

Place of origin

Unlike the term ‘national origin’, [54] â€˜place of origin’ does not only concern Sovereign States, [55] but includes rural or urban areas people come from Mauritius itself. According to the EEOC (US), the term also caters for an individual’s or his/her ancestor’s place of origin. [56] Therefore, this ground includes nationality, indicative that the EOA also protects citizens, as well as non-citizens.

Hence, discriminatory acts against Rodriguans on the basis of their origin will fall under this ground, since Rodriguans were considered to have a ‘distinct origin’ from Mauritians in the case of Police v Rose. [57] 

Political opinion

This involves a less favourable treatment based on one’s political view or affiliation. In Redfearn v UK [58] it was held that being a member of a political party was not a sufficient ground for dismissal. The absence of such protection may be considered contrary to the essence of the ICCPR. [59] 

Race

Special importance should be attached to discrimination based on race. [60] Race is an ‘elusive term’ [61] in most countries; be it in Mauritius, UK or Australia. Nevertheless, according to the EEOC (US):

"Race discrimination involves treating someone (an applicant or employee) unfavourably because he/she is of a certain race or because of personal characteristics [62] associated with race."

Sex

In Archibald v Fife Council HL, [63] it was observed that:

"A men and women… are opposite sides of the same coin. Each is to be treated in the same way… Pregnancy apart, the differences between the genders are generally regarded as irrelevant."

Thus, requiring a man to do unpleasant works is unlawful. [64] In Batisha v Say, [65] refusing to employ a woman as cave guide regarding it ‘a man’s job’ was held discriminatory.

Mauritius, as a State party to the CEDAW, is under a legal obligation to "respect, protect, promote and fulfil the right to non-discrimination for women." [66] Thus, both sexes share equal rights, whether concerning purchasing, holding and disposing land, inheritance, equal pay, [67] trade [68] or education, where there is also no gender disparity. [69] 

It was only in 1995 that ‘sex’ was added to the grounds protected under section 16 of the Constitution. Yet, there are still instances of differential treatment against women. For instance, a legitimate child has to bear the surname of his father and not of his mother. [70] 

Also, the EOA, unlike the Equality Act (EA) 2010 (UK), [71] is silent regarding discrimination against those whom have undergone gender reassignment. In the case of Chessington World of Adventure v Reed [72] discrimination arising from an intention to undergo gender reassignment was held unlawful under the SDA.

Furthermore, Women are statistically less likely to occupy senior positions and high-level jobs. Neither the EOA nor the Constitution provide for the catering of an equal parliamentary representation of women, who currently occupy only 18.8% of the seats. Therefore, the gender gap in the labour market and in politics is yet to be bridged.

Sexual orientation

The SDA did not provide for sexual orientation, since "sex" and "sexual orientation" are poles apart. [73] It was only in 2008, after Mauritius had supported a resolution of the UNHRC on the rights of homosexuals, that the legislature added protection of homosexuals in the EOA and ERiA. The concept of sexual orientation includes heterosexuality, homosexuality and bisexuality. [74] 

Even the EOA of Trinidad and Tobago does not provide for such protection. This may be a vital step in acknowledging the rights of the LGBT community in Mauritius.

In South Africa same-sex marriage is legal, [75] following the case of Minister of Home Affairs v Fourie, [76] where it was ruled that prohibiting same-sex marriage was inconsistent with the constitutional right to equality and dignity.

UK [77] and France have recently drafted bills [78] which are currently being voted, aimed at introducing same-sex marriages. However, its introduction may raise controversies in Mauritius, because of the "différentes sensibilités religieuses" in Mauritius. [79] 

1.5 Conditions

Does discrimination occur when general election candidates are required to include their religion in their nomination paper, failing which the latter would be rendered null and void? [80] To be legally recognised, discrimination must be: [81] 

1. Based on a criterion prohibited by law

2. Within the ‘scope’ of the Act [82] 

3. Unreasonable and unjustified [83] 

These elements are interdependent; it is therefore not sufficient for the complainant to simply allege that he/she was treated less favourably. [84] 

In Union of Campement sites v Governement of Mauritius, [85] Campement Sites Taxes imposed only on sites close to the seashore was not discriminatory, since it is not prohibited under section 16 of the Constitution. Likewise, differentiation on the ground of profession does not amount to discrimination under section 16. [86] 

In Ace Consultants Ltd v MRA [87] reference was made to AG v Alli [88] where it was observed that:

"Our Parliament is sovereign and may make such laws as it chooses, provided it makes none that the Constitution forbids, for then it would be acting ultra vires."

Thus, in the case of J.Luximon v NTC, [89] the fact that section 26 of the ERiA does not provide for free transportation for workers residing within a radius of 3km from their workplace was not discriminatory, since "the law itself caters for such provision". Following the reasoning of AG v Alli, as long as the law is not "inconsistent with the Constitution", [90] it is valid.

1.6 Exemptions

In some areas, discrimination is unavoidable. In State v Kanojia [91] it was observed that:

"Persons should be uniformly treated, unless there was some valid reason to treat them differently."

According to the Human Rights Committee (HRC), differentiation based on reasonable and objective criteria does not amount to prohibited discrimination. [92] The EOA, therefore, provides for minute exceptions, where individuals may be treated differently:

Employers or prospective employers may discriminate if the nature of the work requires it to be executed by only one sex, [93] for instance female carers assisting female patients.

Similarly, schools are permitted to discriminate by reason of sex, age or mental and physical state of students; depending whether it is a single-sex school or there are no special provisions for impaired persons.

Unlike men, women are afforded, by virtue of the ERiA; [94] maternity leave for 12 weeks on full pay. This aim is legitimate because of the biological realities of pregnancy and childbirth. [95] Even the EOA provides that less favourable treatment against a pregnant woman is direct sex discrimination. [96] 

Refusing to recruit a woman on the ground that she is pregnant, [97] or dismissing a woman absent on maternity leave [98] are examples of direct sex discrimination.

Exceptions are also provided in sports and other areas, where participation is reserved only for certain sex or age group.

1.7 Reasonable test

Discrimination is permitted when it is justified and pursues a legitimate aim. The EOA provides for a reasonableness test in relation to discrimination [99] Therefore an act that would otherwise constitute discrimination will be exempted if it is justifiable in certain circumstances. [100] 

Yet, there may be different stands as to what may constitute a reasonable justification. For example: denying female applicants the post of prison-guards was held justifiable in US on the ground that they were more vulnerable of being attacked by male prisoners; [101] while this decision was not followed in UK. [102] 

It should be noted that if a less favourable treatment is not justifiable, it will therefore be unlawful.

1.8 Meritocracy

Meritocracy is the sign of a truly democratic and equitable society. It ensures that every individual possessing the same prospective will be equally treated and given the opportunity to attain his objectives in various fields of activities of his choice and that no one will be disadvantaged by reason of his status.

The purpose of the EOA is not to make every individual equal; in fact, no law can do so. Instead, it provides equal opportunity; a ‘level playing field’ for all, irrespective of their status. Is it fair to have a race, with an unequal starting line, but an equal finishing line?

Therefore, this shows the need for the act to consider such a vital matter. Following Singapore, a country advocating meritocracy at all levels, the EOA seeks to ensure an equalised starting point for all individuals. In this manner, seats will be awarded only to the most deserving candidates.

CHAPTER 2: SCOPE OF THE EOA

The EOA has a large scope; as such, the numerous years spent in its creation have not been in vain. The Act was carefully designed to combat discrimination in various fields, namely:

(a) Employment activities

(b) Education

(c) Provision of goods and services

(d) Accommodation

(e) Disposal of immovable property

(f) Companies, partnerships, "sociétés" or registered associations

(g) Clubs

(h) Access to premises

(i) Sports

For the purpose of this study, this chapter will focus primarily on the focal areas falling under the purview of the EOA.

2.1 Employment

Eliminating discrimination in the workplace is fundamental to social justice, the heart of the ILO's mandate. Unlike the Indian Constitution, [103] the Mauritian Constitution does not expressly provide protection regarding discrimination in the workplace. Instead, such protection is provided by the ERiA and Employment Relations Act 2008(EReA).

Section 4(1)(a) of the ERiA provides that:

"No worker shall be treated in a discriminatory manner by his employer in his employment or occupation."

Although the grounds of discrimination protected by the ERiA [104] largely mirror the ones provided under the EOA, for many centuries recruitment was based on favouritism, especially since meritocracy was an alien concept. The EOA puts great emphasis on employment, thus reserving its entire Part III for employment activities.

The EOA obliges every employer to apply an Equal Opportunity Policy (EOP), which commits employers to ensuring that no employee is discriminated. The aim is to promote meritocracy in being the pillar for recruitment, selection and promotion. [105] This follows the same view expressed by The Report on Corporate Governance For Mauritius. [106] 

As per the EOC Interim-Report May-October 2012, the EOC will soon materialise its ‘codes of conduct’ and ‘guidelines’ for all employers to follow, in order to preparing their EOP. The EOP will allow each employer to communicate his/her commitment in complying and promoting equal opportunities in the workplace. In the case of Beadles group Ltd v Angelica Graham, [107] failure to have an EOP in the workplace resulted in a higher compensation [108] for the sexually-harassed victim.

The EOA also prohibits discrimination in relation to the conditions of work or occupational health and safety measures, termination of employment or by placing an employee at any disadvantage. [109] 

Furthermore, the Act prohibits employers or prospective employers to discriminate in any job advertisement. In EOC v Robertson, [110] it was observed that in adverts mentioning ‘handyman, Salesgirl or craftsman’ must be open to both sexes.

2.1.2 Private Sector

This Sector has enormously contributed to the progress of our economy. Yet, this does not make it immune, since it also falls under the purview of the EOA. Recruitment for higher positions has long shadowed a policy of succession, commonly referred to as ‘fils à papa’, although there may have been more meritorious candidates. [111] 

The Act thus attempts to end any practices of bias and favouritism. However, how many huge private firms would be willing to blindly choose the most meriting candidate?

Also, Mauritius is popular for its religious tolerance. Discrimination on the basis of religious views and meritocracy may however act as the oppose each other in such situations, yet they collide and raise ambiguity pertaining to recruitment of people belonging to the same religious community and being utterly eligible on the basis of their meritocracy at the same time.

2.2 Education

The constitution does not expressly guarantee the right to education. [112] The Education Act 1957 however guarantees compulsory education till the age of 16. [113] This is backed by section 6 of the ERiA, which provides for a minimum working age of 16. Here, it may be inferred that it is justifiable for a recruiter to discriminate on the grounds of age where the candidate’s age is below 16.

The EOA guarantees equal access to education to everyone, irrespective of sex, marital status, pregnancy or age, even those with impairment.

Mauritius has long worked towards expanding educational opportunities, by providing free universal education and free transportation for students. Parents with financial difficulties may even receive aid from the Social Security. Nonetheless, there are still children who unfortunately cannot pursue higher studies. Here also, to provide equal opportunities, the government provides vocational training to those who are not academically successful.

Previously, some secondary schools under the aegis of religious authorities had some quotas for admission of students of a particular faith. This had been held unconstitutional by the Supreme Court in Tengur v MOE [114] whereby Reserving 50% of intakes to only students of the Roman Catholic faith or Christians in RCEA Schools was held to be discriminatory.

Supreme Court judges had a tough time giving the judgement, but with the promulgation of the EOA, and most notably its section 17, has brought more specificity into matters of discrimination in education opportunities.

The EOA, as earlier mentioned, similar to the UK and Australian anti-discriminatory model, provides for "justifiable" grounds for discrimination, whereby an educational institution may discriminate against an applicant where only the opposite sex has priorities or on the basis of impairment where the person cannot gain access to a normal school with no special facilities.

2.3 Impairment

Cases of discrimination against persons with disabilities are numerous. It is particularly prevalent in employment. A disabled person under the EOA is one who: has a physical, mental impairment or diseases. [115] The Act, however, does not have a predetermined list of ‘recognised diseases’ like in England.

The 2008 decision of the Court of Arbitration for Sport (CAS) in Switzerland has been a cornerstone for disabled persons in general, by giving disabled athletes the opportunity to compete at par with able-bodied athletes. This case involved the blade-runner, Oscar Pistorius, who thereafter was given the opportunity to compete in the 2012 Olympics in London.

In Mauritius, the Ministry has registered nearly 59,200 disabled persons, of which only 4,500 work. [116] Ever since the EOA, the protection of disabled persons has become a priority. Mauritius ratified, in 2010, the CRPD, which promotes and protects disabled persons, ensuring them equal enjoyment of fundamental rights and freedoms.

The effort of the government has accelerated the integration of these workers. Yet, even if the position of firms is gradually changing, stereotypes about people with disabilities persist. Recruiters often fear they are slower, absent and less dynamic than a normal person. This perception is however untrue.

2.3.1 Accessibility

Disabled people often face barriers discouraging them to work, such as infrastructural facilities. The EOA thus ensures access to all public premises to impaired persons. As per section 3 of the Building Control Act 2012:

"Every building shall be designed, constructed and maintained… to ensure that persons with impaired mobility and communication… are able to access and use… the facilities… comfortably." [117] 

The EOA guarantees equal access, on two conditions:

It is safe and poses no danger on the impaired individual.

In the case of Rose v Bouchet, [118] refusing to rent an apartment to a blind person since there were no stair-rails, was justified due to the hardship in judging his steps.

However, regarding employment, if there is a long serving disabled worker, the employer has an obligation to do the best, within his means, to adjust the premises. [119] 

The owner of the premises can afford to provide for such facilities.

In Blair v Venture Stores Retailers Pty Ltd, [120] the company was justifiably not able to afford installing a lift for the employees using wheelchairs due to financial constraints.

If these two conditions are met, an owner is under the obligation to provide for such facilities, thereby "removing the obstacles to participation in the physical environment," as per Rule 5 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities environment.

2.3.2 HIV/AIDS

People with HIV/AIDS still face discrimination. Some employers require a medical examination to applicants. The ERA expressly provides protection against discrimination on the ground of "HIV Status." [121] 

In Hoffmann v South African Airways, [122] it was held that refusing to recruit an HIV-positive applicant as cabin-attendant contravened the "right to equality and freedom from discrimination" guaranteed by the South African Constitution. [123] A HIV-positive employee is suitably capable of the same workload as those not infected. [124] 

2.3.3 Other scopes

Education, training, sports, music and art must also be made accessible to the disabled, as the abled bodies. The government is striving to achieve this, for example the University Of Mauritius continuously provides for more facilities to assist disabled students, although there is no such obligation under the University Of Mauritius Act 1971.

2.3.4 Exceptions

In UK, its Disability Discrimination Act 2005 provides for a ‘justification defence’. [125] In regards to employment, such unfavourable treatment, to be justifiable, must necessarily be for the ‘smooth-running of the employer’s business.’ [126] 

The EOA also provides for such exceptions; a person may be discriminated on the basis of his/her impairment whereby the person will be unable to fulfil the ‘inherent requirements of the job’, [127] he/she would suffer hardship or he/she would be at risk because of the nature of the work. [128] It may also be justifiable, when it ‘poses a health risk to others,’ [129] for example where a nurse handling injections has HIV/AIDS.

As mentioned earlier, such exceptions do not only concern employment. In the case of L v Minister for Education for the state of Queenland, [130] it was held that excluding a child with intellectual disabilities from a mainstream school was justifiable since it outweighed the right of the disabled child to equal treatment.

The EOA however does not provide protection against discrimination for carers of disabled persons as in UK. [131] Also, regarding equal access to public premises; is one aspect, while problems such as uneven pavements and public transport facilities for disabled persons still persist. In India, its Persons With Disabilities Act 1995 not only guarantees free education to every disabled child, but also provides for transportation, school adaptations and suitable alterations of their curriculum.

The scope provided in the EOA is therefore not enough to protect disabled persons. Instead, the EOA has further encouraged the promulgation of a future Disability Act, which "protégera et défendra les droits des personnes handicapées contre toute forme de discrimination." [132] Hopefully, with its promulgation, additional grounds will also be covered.

2.4 Sexual Harassment

Sexual Harassment is a form of discrimination since it involves a differential treatment. In South Africa, its EA 2000 bluntly provides that: ‘No person may subject any person to harassment.’ [133] 

The European Commission's Code of Practice 1991 defines Sexual harassment as:

"An unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct."

Sexual harassment [134] is characterised by an unwelcome:

Sexual advance [135] 

Request for a sexual favour

Conduct of a sexual nature, which may include: touching, sexual remark, [136] displaying nude pictures in the workplace, [137] jokes, [138] abusive body-search inspection, [139] clothes measurement requirement, [140] and so on.

Sexual harassment mostly arises in employment and is most particularly sought upon recruitment for a suitable job or for promotion. This explains why the ERA also caters for sexual harassment. [141] 

In Maroam v State [142] it was held that an unwelcome statement must be repetitive and of sexual nature to constitute sexual harassment. However, even a single act may constitute discrimination, if it is "sufficiently serious". [143] 

The EOC is a new appeal for anyone who feels sexually harassed. Part V of the EOA protects individuals from sexual abuse and humiliation in all fields.

In the past, Sexual Harassment was limited only to the employer-employee relationship. [144] This was confirmed in the case of Maurel v R, [145] where it was observed that the law does not protect employees in "equal positions". However, with the EOA, this is no longer the case. Section 26 aims for situations where a person seeks a sexual favour, regardless of their hierarchical relationship.

Although women are more prone to Sexual Harassment, [146] this provision applies to both sexes and also homosexual or bisexual. In Vishaka v State of Rajasthan [147] it was emphasised that employers have an obligation to provide certain dispositions to prevent sexual harassment at the workplace. Unlike the EOA, the "code du travail" in France expressly provides for such obligation on employers. [148] Therefore, the EOC may as such, include such obligation in its guidelines for the EOP.

The SDA (UK) was amended in 1984 to include Sexual harassment. However, in Porcelli v Strathclyde Regional Council, [149] the sexual harassment was prohibited only on the basis of sex, not catering for sexual orientation. However, with the EOA, sexual orientation is also included, since it falls under the definition of status.

Sexual Harassment is however very complex, consequently; it was repealed from the code pénal (France). As confirmed in the case of Khanna v Minsitry of Defence, [150] sexual harassment is hard to prove. The cases of Police v Mohit [151] and Police v Omnes Jacques [152] were dismissed since the prosecution failed to prove its case beyond reasonable doubt, due to lack of evidence. The fact that this crime happens between two parties, and is often hidden from the scrutiny of others, complicates matters.

CHAPTER 3: MECHANISMS

3.1 Overview

This chapter provides an overview of the institutions setup under the EOA in order to enforce its provisions. The EOA establishes under its wings:

The Equal Opportunities Commission [153] 

The Equal Opportunities Tribunal [154] 

3.2 Equal Opportunities Commission

The EOC is a body corporate, [155] established to enforce the provisions of the Act and receive complaints of alleged acts of discrimination and solve them by means of peaceful conflict resolutions. Similar to the HREOC (Australia), the EOC has much Autonomy and independence, allowing it to report directly to the President of the Republic. The main mandate of the Commission is to ensure that no person is treated unfairly by reason of his/her status.

3.2.1 Composition

The Commission, already operational, consists of a Chairperson and three members. The Chairperson should either have been a judge, a magistrate or law practitioner with more than 10 years’ practice. As for the members, at least one of them must have been a law practitioner for not less than 5 years. Such requirements are very indicative that such members (legal professionals) would be fit to interpret the relevant sections of the EOA, rather than lay persons.

The members are appointed by the President of the Republic on the advice of the Prime Minister, after consulting with the Leader of the Opposition. [156] Any member may be removed in the same manner, in case of ineffectiveness. Such powers of appointment and removal may however affect the independence and effectiveness of the body, especially if there are conflicts between the President, Prime Minister and Opposition.

3.2.2 Functions

The duty of the EOC, as set out by section 27(3), is to do all within its means to eliminate discrimination and promote equality and good relations between persons of different status. In addition to considering complaints, the Commission, as an expert in discriminatory matters is presumably fit to conduct investigations. On its own motion on matters it considers flagrant (similar to the EA 2010 [UK]) [157] or following a complaint.

The Commission must also prepare suitable guidelines and codes for employers and the public for the prevention of discrimination and take necessary actions to ensure its compliance. The Commission must also conduct and foster research, educational campaigns and other programmes to promote the concept of equal opportunity and raise awareness, as in UK.

Unlike the EEOC (US), the EOC has no adjudication powers. Instead, similar to the HREOC (Australia) and Ontario Commission of Canada, it should attempt to settle differences through conciliation. This concept is highly cheered in UK and New Zealand since it "helps to successfully unclog the arteries of judicial administration, and allows parties… to resolve their disputes at a pace they are comfortable with." [158] 

However, upon failure of any conciliation or refusal to do so, since conciliation is voluntary, the matter shall be referred to the EOT.

3.3 Equal Opportunities Tribunal

The EOA has equally set up an EOT, [159] independent from the EOC. It is the first instance jurisdiction in determining whether or not the Act has been breached.

The tribunal, not yet operational, will shed light on unresolved cases, referred by the commission. The Tribunal has jurisdiction like any other lower court and likewise, its decisions are binding.

3.3.1 Composition

The Tribunal consists of a President, a law practitioner with more than 10 years’ practice, together with 2 members having 5 years’ experience in the legal field, human rights, among others. They are all appointed by the Public Service Commission (PSC). [160] 

3.3.2 Jurisdiction

The Tribunal has jurisdiction to hear and determine complaints referred by the Commission. Regarding urgent matters, it has the prerogative to issue interim injunctions in order to prevent serious and irreparable damage or for the protection of public interest. [161] 

It may also issue such directives as it considers necessary to ensure compliance with the EOA. It also has the jurisdiction to do what is within its means to reconcile the parties and restore the status quo. This includes ordering compensation, or any other order, such as annulling or changing the terms of a contract, tampered by discrimination; Similar to the Australian discriminatory model.

3.3.3 Proceedings

The EOT may sit at any such place and time the president deems fit and shall sit in public, except for a valid reason. The Tribunal may summon witnesses and examine them on oath, like any court of law. Similarly, barristers or attorneys may assist the parties and there are also oral hearings and written submissions as in court.

3.4 Procedure [162] 163

It usually starts with a lodged complaint, [164] indicating the ground/grounds of discrimination which has/have allegedly been violated. [165] Particular care must be taken, especially in one-to-one situations. [166] This is why the commission performs a preliminary enquiry to test the genuineness of the complaint.

The matter is then investigated [167] to find whether there is sufficient evidence of discrimination to support the case. If no discrimination is found, the parties shall be informed in writing, why the complaint was not considered. This is proof of transparency on the part of the commission.

Otherwise, the Commission will summon the parties at the seat of the EOC for a confidential meeting and attempt to resolve the situation through the conciliation procedure provided by the law. [