The Employment Equity Act, as it now stands classifies "unfair discrimination?
as follows:
No one may directly or indirectly discriminate against an employee or job
applicant, in any employment policy or practice, based on:
? Race
? Gender
? Sex
? Pregnancy
? Marital status
? Family responsibility
? Ethnic or social origin
? Colour
? Sexual orientation
? Age
? Disability
? Religion
? HIV status
? Belief
? Political opinion
? Culture
? Language
? Birth
It does not apply to discrimination in terms of skills relating to the inherent
requirements of the job.
The proposed changes to the clause on unfair discrimination broaden the
scope to include "any other arbitrary ground?. However, in all claims of unfair
discrimination relating to "arbitrary grounds? the burden of proof is on the
employee or job applicant opposed to the employer who holds the burden of
proof in the defense of claims based on unfair discrimination relating to any of
the listed grounds in the Act.
The shift from employer to employee or job applicant in terms of responsibility to
prove that conduct is not rational, amounts to discrimination and that the
discrimination is in fact unfair should halt the many unsubstantiated claims of
unfair discrimination that employees currently lodge.
Possibly one of the more focused-on proposed additions to the Employment
Equity Act?s is the introduction of the right to "equal pay for work of equal value?,
which is to be added as a sub clause to Section 6. This will make law that it is
unfair to discriminate between the remuneration and working conditions of
employees doing the same work or work of equal value.
In claims relating to "equal pay for work of equal value? on an arbitrary ground,
the onus is on the employer to prove that the differentiation is fair based on
factors such as qualifications, skills and or responsibilities once the employee
has substantiated the income differential.
Although this statute does allow for pay differentiators, it will demand that
the reasoning for such be clearly and consistently documented and applied.
This is what the majority of criticism has been focused on; what factors will
provide guidelines to good practice i.e. merit, performance, experience, length of
service, career path, succession plan, skills supply and demand and what
components of remuneration will be effected; basic pay, performance bonuses
or cost to company?
Perhaps the easiest and fairest way to determine "equal pay for work of
equal value? is competency, but this would require employers to create specific
HR policies that are structured according to NQF levels, unit standards and a
relevant grading system.
This article was written by PMI (a member of the Adcorp Holdings Group).
PMI is an accredited Private Higher Education Training Provider with a
national footprint and an expansive range of services across various sectors.
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