Discrimination

What is discrimination under the Tanzanian Labour Laws?

Discrimination has not been defined under the Tanzanian Labour Laws but Article 1 (a) and (b) of Convention No 111 on Discrimination (Employment and Occupation) Convention, 1958 defines discrimination to include:

• Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. 
• Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.
• Additionally, section 7 (5) of the Employment and Labour Relations Act, 2004 provides that harassment of an employee shall be a form of discrimination and shall be prohibited on the same grounds as discrimination against colour, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/AIDS, age or station of Life.

Does the law prohibit discrimination?

Section 7 (4) of the Employment and Labour Relations Act, 2004 prohibits discrimination against an employee in any employment policy or practice, on one or more grounds including:

• Colour. 
• Nationality.
• Tribe or place of origin.
• Race.
• National extraction. 
• Social origin. 
• Political opinion or religion.
• Sex.
• Gender. 
• Pregnancy. 
• Marital status or family responsibility. 
• Disability.
• HIV/AIDS.
• Age. 
• Station of life. 

Are there any circumstances which may appear as discrimination but which the law allows?

Yes. The following circumstances can appear as discrimination but under the law they have been described as not amounting to discrimination:

• Taking affirmative action consistent with promotion of equality or elimination of discrimination in the workplace.  
• To distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
• To employ citizens in accordance with the National Employment Promotion Services Act, 1999.

What actions can an employee take if he/she has been discriminated against?

If an employee feels and believes that he/she has been discriminated against, they can lodge a complaint at the Commission for Mediation and Arbitration (CMA) within 60 days of the alleged unfair discrimination taking place. If the CMA is not able to resolve the dispute through mediation, the matter can either be referred for arbitration or to the Labour Court for adjudication. 

However, if a complaint is against a fellow employee, it can first be dealt with internally as a grievance. 

What duty does the law impose on employer in overseeing that there is no discrimination in the workplace?

The law requires an employer to promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. The employer is required to register a plan to promote equal opportunity and to eliminate discrimination with the Labour Commissioner.

Who has the duty to prove what in a discrimination case filed against me by my employee?

Where the employee makes out a prima facie case of discrimination by the employer on any grounds prescribed above, it shall be your duty as an employer to prove that the discrimination did not take place or that the discriminatory act or omission is not based on any of those grounds listed above. 

Is discrimination only prohibited during employment?

No! Discrimination is prohibited against both a job applicant during their shortlist and interview period, as well as to someone who is already employed. Shortlisting and interviewing panels need to do their best to make sure that their selection/non selection is not based on the grounds listed above.

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