Gender or sex: don’t discriminate against either
IT NEWS / 18 MAY 2020 - 16.22 / STAFF REPORTER
What if your white male employee self-identified as a woman? Or your African male colleague identified as an African female to score more BEE points?
This is not a test. This is the future of the workplace where gender and racial identities are fluid and organisations have to put policies in place that are capable of keeping up. Gender identification and qualification have undergone a fundamental change in the workplace and South African organisations better get ready for what lies ahead.
“Some believe that gender is fluid and comprises a range of different identities,” says Nicol Myburgh, Head of CRS Technologies’ HCM Business Unit. “Consequently, someone can identify as a combination of different genders within this range, such as a percentage of X or a percentage of Y, which means they can change their gender identity at any time.”
How is the organisation supposed to keep up with this level of gender fluidity? And should South African legislation around gender be amended? These questions only serve to spark even more questions around employment equity, BEE and gender security. There’s little restriction in place to prevent either racial or gender identity from becoming fluid in the future and nothing to stop white males from identifying as African females, but can they apply for roles that are exclusively dedicated to African females?
“From a constitutional human rights perspective, organisations cannot discriminate against anyone on the basis of gender,” says Myburgh. “Employees must be given the freedom to express their preferences when it comes to gender identity, but they cannot do so to the extent where it becomes offensively explicit or infringes on other employee’s rights. It’s all about respecting the preferences of your colleagues to create a harmonious working environment.
South African organisations could follow in the footsteps of American and European companies that have installed gender-neutral bathrooms, but even this could present an issue for some employees who may question the validity of a person’s gender identity. Some employees may not be ethical about their gender fluidity claims and use these to achieve an ulterior motive.
“This can disrupt workplace harmony and cause conflict,” Myburgh continues. “Some of these issues can be addressed by conducting gender sensitivity and emotional intelligence training, and organisations could invest in providing ‘safe spaces’ for employees to communicate their concerns. They could also be more inviting of this fluidity by including an ‘other’ option on forms that ask for gender classification and to use the preferred gender-neutral pronouns when asked.
“Gender-neutral pronouns such as ‘they’, ‘them’, ‘this person’ or ‘everyone’ can be tricky and cause confusion in the workplace. They can also cause conflict as employees may feel that they’re not being addressed by the preferred pronoun. In Europe and Canada employees have been dismissed for using the wrong pronoun.”
Another challenge lies in how gender and sex have changed in terms of their definition and perceptions. Previously the terms were interchangeable, but now ‘sex’ is used to refer to biological differences while ‘gender’ refers to the role of a male or female in society, an individual’s concept of themselves, or gender identity. South African legislation currently only recognises the binary concepts of gender and there’s no option to reflect no gender or a third gender on a birth certificate.
“The generation gap is also a problem when it comes to gender fluidity in the workplace and another possible source of conflict,” Myburgh adds. “Baby Boomers (1946-1964), for example, generally regard gender diversity as nonsense and are not afraid to express their opinion, while Generation X (1960s – late 1970s) view it as nonsense but don’t articulate their view. Millennials (1981-1996) accept the concept but don’t advocate for or against it, but Generation Z regards it as a scientific fact and that we must adapt accordingly.”
It’s a murky landscape to navigate with minimal guidance from legislation or the law. Section Nine of the Constitution clearly states that all people of South Africa are guaranteed equality before the law and freedom from discrimination. The right to equality is also the first listed in the Bill of Rights that prohibits discrimination by the government and private persons, while the Employment Equity Act states that no person may unfairly discriminate based on gender or sex.
“How these laws will shift alongside fluid gender and racial boundaries, and whether South African will follow the same pathways as the rest of the world, has yet to be seen,” Myburgh concludes.
Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER