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  • Companies will have to show they took "reasonable steps" to prevent discrimination by an employee to escape liability, under a new draft law.
  • At the same time the need for intent to discriminate would be dropped, and the definition of what counts as discrimination would be broadened.
  • Equality too would get a broader definition, requiring equal access to opportunities and resources, if the amendment to the Promotion of Equality and Prevention of Unfair Discrimination Act passes.
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Under a new draft law, companies would have to show they had taken "reasonable steps" to prevent discrimination by employees if they want to avoid facing the legal consequences alongside those employees.

At the same time, the definition of discrimination would be broadened – and the need for intentional action dropped – so that an employee who undermines the dignity of a person in a protected class, even by accident, would create corporate liability.

Those changes are proposed in an amendment Bill for the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) published by the department of justice and constitutional development last week.

Large sections of the 20-year-old Pepuda are still not in operation, because of the "regulatory burden on placed on all sectors of society, both public and private" where it tries force the promotion of equality, the justice department says.

The amendments make the law more realistically implementable, the draft amendment seeks to "[c]larify and reduce certain duties" for the state.

Companies, on the other hand, face greater responsibilities.

If the amendment passes in its current form, employers and employees acting in the course of their work would be equally liable for unfair discrimination by an employee, and action would be possible against "either or both of them unless the person took reasonable steps to prevent the worker, employee or agent from contravening" the law.

Discrimination would be easier to prove too. Under the draft law discrimination would newly include:

  • encouraging someone else to discriminate
  • causing prejudice
  • undermining dignity

Discrimination could be found whether or not it had been intentional, ad could be direct or indirect.

The definition of equality too would get an upgrade, to include "equal right and access to resources, opportunities, benefits and advantages."

Pepuda outlaws unfair discrimination on the basis of race, gender, sex, sexual orientation, age disability, language, religion, and other specific grounds, but also contains catch-all definitions dealing with any discrimination that causes systemic disadvantage.

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