In our post of March 7th we said that “employment decisions based upon tattoos, certain headwear or other garb, and grooming habits may, in fact, run afoul of Title VII’s prohibiition against religious discrimination. How, you ask? Certain religions may require their adherents to conform to certain appearances, either clothing, body decoration or certain grooming habits. And employers may be required to accommodate such practices.”  See our posts of October 16, 2013; July 9, 2012; February 11, 2011).

Johann Scheepers, a commissioner at the Commission for Conciliation, Mediation and Arbitration in Johannesburg, South Africa, and our trusty rapporteur of all matters South African, has this report from SA in response to our post about grooming habits and religious garb as they interplay with anti-discrimination laws.   And about dagga.

“In South Africa the issue of grooming habits and hairstyles became an issue of contention within the Department of Correctional Services as far back as 2007, when a new area commissioner was appointed.  As the saying goes “a new broome sweepeth cleane,” in that the newly appointed commissioner decided that as part of a cleanup operation the dress code policy which forbade the wearing of dreadlocks should be reinforced.

A directive was issued that all male correctional officers with dreadlocks should cut their hair in accordance with the dress code, failing which dismissal would follow on the ground of breaching the dress code and refusal to comply with a lawful order. The instruction was not directed to female correctional officers.   Some male correctional services officers were dismissed for refusing to heed this instruction.

The Labour Court held that the dismissals were discriminatory and unfair. On appeal the Department argued that the discrimination was justifiable because it merely sought to eliminate the risk posed by officers who subscribe to religions or beliefs which promote the use of dagga [Ed. “Indian hemp used as a narcotic; cannabis”].  The Department’s central argument in that regard was that warders who sport dreadlocks are susceptible to manipulation by inmates to smuggle marijuana into correctional centres.   Women did not pose the same problem, because they usually wear long hair and female Rastafarians do not normally use dagga.

In Department of Correctional Services and another v Police and Prisons Civil Rights Union and others [2013] 7 BLLR 639 (SCA), the Supreme Court Of Appeal held that once discrimination on a listed statutory ground was established, unfairness was presumed unless the Department proved the contrary.  A policy which effectively punished the practice of a religion and culture degraded and devalued their followers. Whether the discriminatory practice was justified had to be decided in terms of section 187(2)(a) of the Labour Relations Act – i.e., that the dismissal was based on an “inherent requirement of the job.”  In that regard, the Department faced an insurmountable obstacle.

The case advanced in the Labour Court was that the instruction had been issued to enhance uniformity of dress and neatness in appearance. The subsequent claim that the true concern was the use of dagga was not supported by the evidence.  Furthermore, no evidence had been adduced to indicate that the employees’ hairstyles detracted from their work performance or rendered them susceptible to manipulation by prisoners. No rational connection had accordingly been established between the measure taken and its purpose. The appeal by the Department was dismissed with costs.”