Chapter two of the Employment Equity Act (EEA) deals with Unfair Discrimination and has a significant impact on the nature and extent of recruitment and selection from a statutory point of view.
In Section 5 of the EEA all employers are obliged to take positive steps in order to promote equal opportunity in the workplace and must eliminate unfair discrimination in their employment policies or practices. This means that recruitment procedures, advertising and selection criteria must be fair and based on inherent job requirements that are justifiable and defensible.
In Section 6 of the EEA unfair discrimination is prohibited in recruitment, selection, promotion, transfer and related employment practices and decisions. Specifically, the EEA outlaws unfair discrimination, directly or indirectly, in any employment policy or practice, on one or more grounds. This section proceeds to provide, however, that an employer is NOT deemed to have discriminated unfairly against an employee (including a candidate) where that employer:
? Takes affirmative action measures consistent with the purposes of the EEA ; or
? Distinguishes, excludes or prefers any person based on an inherent requirement of a particular job.
In Section 7 of the EEA medical testing of applicants or employees for any medical condition is prohibited unless such testing is permitted or required by legislation or it is justifiable in view of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. The EEA defines medical testing in particularly wide terms so as to include any test, question, inquiry or other means aimed at establishing the existence of any medical condition.
In Section 8 of the EEA psychometric testing is also prohibited unless the test being used has been scientifically validated as providing reliable results, can be fairly applied to all employees, and is not biased against any employee or group.
Section 9 of the EEA defines "employee?- for purposes of sections 6, 7 and 8 to includes an applicant for employment.
Section 57 of the EEA states that where a Temporary Employment Service (TES) commits an act of unfair labour practice on the express or implied instruction of a client, both parties are jointly and severally liable.
Discrimination means to act on the basis of difference. When this differentiation is based on human characteristics (i.e. race, gender, belief, etc) it is viewed as discrimination.
Discrimination can be direct or indirect.
For example, it is direct discrimination if you pick someone because he is a male.
It is indirect discrimination when you choose someone based on criteria, which at first glance might seem reasonable, but on closer inspection, it excludes a large portion of people, i.e. only people with their own cars need apply for the sales positions.
The EEA requires that this discrimination must be fair and legally justifiable.
The following model can therefore be used to determine whether unfair discrimination is occurring:
? Question 1: Is the candidate being treated differently?
The answer will generally be yes, i.e. if you choose to interview or not to interview an applicant or by choosing one candidate over another.
? Question 2: Is the differential treatment based on a prohibited ground (e.g. race, gender, language, age, etc)?
If yes, it is direct discrimination.
If no, then what was the reason for differentiation? (Indirect discrimination)
? Question 3: Is this fair discrimination?
It can only be fair if it is based on an inherent job requirement or if it is based on the EE plan of the company (Affirmative Action measures).
For more information email
Menet Hamel of Global Business Solutions [email protected]
