The South African democracy is one that is based on the values of freedom, equality, and dignity. As such, s 9 of the Constitution states that everyone has the right to equality. This provision further provides that no one, including the state, can unfairly discriminate against another person based on grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
The Employment Equity Act 55 of 1998 (EAA) is the key legislation that deals with equality and equity at a workplace. The purpose of this Act is to eliminate all forms of discrimination in the workplace and promote equality and equity. Section 6(1) of the Act provides as follows:
‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth … .’
This means that employers may not discriminate against employees on any of the listed grounds, including disability. For the purpose of this article, the focus will be limited to discrimination based on disability.
Section 1 of the EEA defines people with disabilities as ‘people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment’. This definition is wide enough to accommodate unconventional characteristics of disabilities. There is thus a possibility of identification of new disabilities within the context of the EEA.
The Code of Good Practice on Employment of Persons with Disabilities (GN1085 GG39383/9-11-2015) was adopted in line with the EEA. Therefore, when applying the Act, the court when interpreting and/or applying the EEA, it must consider the Code. The Code’s break down of the definition of people with disabilities as provided in the EEA define ‘physical impairment’ as ‘a partial or total loss of bodily function or part of the body’ (item 5.3.1 of the Code). This wide definition of people with disability allows all forms or partial or total loss of bodily function. The Code and the Act do not limit the physical impairment to a visible physical impairment. Therefore, this allows for invisible physical impairments to be identified as a disability in terms of the EEA.
The Equality and Human Rights Commission (EHRC) recently released an unconventional guideline that identifies menopause as discrimination against women in the workplace (EHRC ‘Menopause in the workplace: Guidance for employers’ (www.equalityhumanrights.com, accessed 19-3-2024)).
According to the guidelines employers can ‘be sued for disability discrimination if they fail to make “reasonable adjustments” for women going through menopause’ (Nadeem Badshah ‘Employers must make “reasonable adjustments” for women going through menopause’ (www.theguardian.com, accessed 19-3-2024)). These guidelines come amid concerns about women leaving their jobs due to suffering from menopausal symptoms.
The EHRC held that ‘if the symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities they may be considered a disability’ (Badshah (op cit)). The guidelines further state that the employer must protect an employee who suffers from menopause symptoms from less favourable treatment on the grounds of age and sex.
Research shows that symptoms of menopause ‘include anxiety, mood swings, brain fog, hot flushes and irregular periods’ (Badshah (op cit)). The Chartered Institute of Personnel and Development found that most women who experience menopause suffer from these symptoms and that has a negative impact on their work (Badshah (op cit)).
Therefore, the EHRC guidelines suggest that, if an employee is suffering from one or more of these symptoms for a long time and this has a substantial impact on their ability to work, such symptoms may be considered as a disability. Thus, the employer in terms of the United Kingdom Equality Act 2010 will have to take reasonable measures to accommodate such employee(s) (Badshah (op cit)).
In terms of s 39(1)(c) of the Constitution any court or tribunal may consider international law when interpreting any right in the Bill of Rights. The right to equality is included in the Bill of Rights, and therefore, whenever the court interprets or applies its mind it may consider foreign law. The EHRC guidelines may, therefore, form part of foreign legal sources in South Africa (SA). Therefore, whenever the South African courts interpret the right to equality in terms of the Constitution and the EEA the court may consider the EHRC.
Should the court consider the EHRC guidelines when dealing with equality and the EEA and what could this mean for SA’s disability rights? As stated above, the EEA does not limit physical impairment to a visible or external bodily disfunction. This means that menopause as a physical inability for a woman to have a period for more than 12 months can be identified as a physical impairment. However, such employee would have to prove that such long-term impairment ‘substantially limits their prospects of entry into, or advancement in, employment’.
It is argued above that menopause has symptoms such as ‘anxiety, mood swings, brain fog, hot flushes and irregular periods’ (Badshah (op cit)). Some of these symptoms, however, are not physical impairments. They instead qualify as mental impairments. According to the Code, ‘mental impairment’ refers to ‘a clinically recognised condition or illness that affects a person’s thought processes, judgment or emotions.’ This means that menopause can be identified as a disability that comprises both physical and mental impairment of a person.
South Africa has long accepted that recurrent or long-term depression is a form of disability. In the case of Jansen v Legal Aid SA (2018) 39 ILJ 2024 (LC), the court held that if the employee suffers from long-term depression that has a substantial impact on his day-to-day job, judgment and reasoning, such depression can be identified as a disability and the employer must provide reasonable accommodation for such employee.
Furthermore, in terms of s 15(2)(c) of the EEA an employer has a duty to take measures to ensure reasonable accommodation for people from designated groups which include people with disabilities. It, therefore, appears that if the employee suffers from symptoms of menopause for a long time (12 months) and such symptoms have a substantial impact on their work, those symptoms can be identified as a disability, and the employer must take reasonable measures to accommodate the employee.
If SA was to adopt or apply the EHRC guidelines, it is likely that menopause would be identified as a disability in terms of the EEA. This is because both the EEA and the Code do not limit physical impairment to visible physical impairment. Furthermore, the EEA considers mental impairment as a disability if it lasts for a long time and affects an employee’s employment. This means that if an employee who suffers from any symptoms of menopause such that it has a substantial impact on their work for a continuous or recurring period of more than 12 months, an employer must provide reasonable accommodation for such an employee. Therefore, employers are advised to deal with cases of menopause and their symptoms with caution to avoid liability.
Zuko Ndzoyiya LLB PG Dip Labour Practice LLM (Labour Law) (NMU) is a lecturer at Eduvos University in Gqeberha.
This article was first published in De Rebus in 2024 (June) DR 11.
