The Employment Equity Act (EEA) makes it clear that you can't unfairly discriminate, directly or indirectly against employees when recruiting.
But what does the act mean by 'directly' and 'indirectly'?
Direct discrimination is when you treat people differently and less favourably because of who they are. And indirect discrimination is when you apply factors which, although seem to be fair and reasonable, unfairly exclude certain groups of applicants.
While the EEA makes it clear that discrimination is a no-no, some crafty employers come up with ways of disguising their discriminatory practices. They include harmless looking methods and criteria in their recruitment and selection policies, procedures and practices.
Read on to find out three examples of these 'camouflage recruiting techniques' ( which is indirect discrimination) so you can avoid them at all costs because they could open your company up to a R2.7 million fine or 10% of your turnover.
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Never use these three 'camouflage recruiting techniques'
Camouflage techniques include, for example:
An employer who wants only white artisans. He might offer black employees only weekly paid jobs and reserve pension benefits for monthly paid employees.
Doing this would allow the employer to deter many black applicants (who need pension fund cover) from pursuing this job. In such a case, the real discrimination is racial but it has been disguised by the more innocent looking criteria of monthly versus weekly paid employees.
There's even a case about this (Leonard Dingler Employee Representative Council vs Leonard Dingler (Pty) Ltd
In this case, the Labour Court found that the restriction of membership of a pension fund to monthly paid employees amounted to indirect discrimination against black employees who were paid weekly.
An employer who is prejudiced against Jews. He may, for example, create a job requirement that work on Saturdays is compulsory.
This means, Jewish applicants who can't work on Saturdays won't be able to apply. While Saturday work is the disguise, the real reason for this requirement is religious discrimination.
Requiring employees to wear a uniform that reveals arms and legs. This could make it impossible for a lot of Muslim women to apply for the job.
If you can't prove that wearing such a uniform is a real and inherent requirement of the job, it could be viewed as a 'veiled' discriminatory practice.
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Whether you practice indirect discrimination intentionally or unintentionally, you're opening your company up to strong legal action
You see, an applicant doesn't have to prove beyond reasonable doubt that you discriminated against him. He only needs to show the possible link between your practice or policy and discrimination on one or more grounds. And this won't be hard for him to do.
It will then be up to you to justify your actions. If you can't, the court could force you to appoint the applicant.
And being stuck with an employee who's been appointed by a court order is hard. You may find it difficult to control, discipline or dismiss
him because your actions could be seen as you retaliating against the original court action.
The best thing you can do is to never use these three 'camouflage recruiting techniques'. It's not worth the legal action.
sums it up nicely when it says, 'as an employer, it's your legal obligation to avoid discrimination when you recruit workers. Each step of the recruitment process should be non-discriminatory. This includes, advertising the position, conducting interviews and pre-employment tests and selecting the preferred candidate.'
'The application process should be open and accessible and not present barriers that could discourage people from applying,' adds the site.