In terms of the EEA, discrimination is unfair if it is related directly or indirectly to a prohibited ground like disability, HIV status, race, sex and political beliefs. 'It makes no difference whether it's deliberate or by omission. If you can't you can justify the discrimination, you're guilty of unfair discrimination,' says The Labour Law for Managers Loose Leaf Service.
That's right, this EEA stipulation also means discrimination can be fair – if there's a justification for it. BUT only on these two main grounds:
The two main grounds on which you can justify discrimination
#1: Inherent requirements of the job
These are the requirements an employee must meet to do the job, or do it according to generally accepted standards. This refers to aspects of the job that require, for example a particular gender, religion and ability for it to be done
According to reasonable standards, for instance, the Pope must be Catholic, a wet-nurse must be a woman and airline pilots can't be blind.
In the case of authenticity, for example, this means having a woman play the role of Juliet in Romeo and Juliet.
To comply with general notions of decency, this would include appointing women security guards to search women employees.
This is also the case when it comes to a certain level of ability or skill. Examples of this would be taking into account physical strength to carry heavy object, a university degree for an accountant or lawyer and a driver's licence for delivery truck drivers.
#2: Affirmative action
This involves giving preference to people from 'designated groups' provided they meet the inherent requirements of the job, even if they're not the best candidate for the job.
This means, in some cases, you can successfully defend the decision not to employ someone on the grounds that you want to promote affirmative action as is the case with SAA.
For example, if the disgruntled applicant was white and was rejected in place of a black candidate because of his colour, you may be able to show that the decision, although based on discriminatory grounds, was necessary to allow you to achieve a more balanced and representative workforce.
This is possible because the EEA requires you, as an employer (at least those 'designated' under the Act) to implement affirmative action measures.
Essentially, 'a discriminatory appointment which is made to promote equal opportunity in the workplace may not be discriminatory at all, because the intention is to correct past discrimination,' says the Loose Leaf