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Here's what the amended EE Act says about the 'burden of proof' in discrimination cases

by , 06 August 2014
As you know, the Employment Equity Amendment Act 2013 came into effect last week Friday (1 August 2014).

One of the amendments concerns the 'burden of proof' in discrimination cases.

Read on to find out exactly what the Act says about this so you'll know how to handle unfair discrimination cases.

The EE Act has this to say about the 'burden of proof' in discrimination cases

Labour Net's Greg Kowalik explains that section 11 of the EE Act has been expanded upon to give clear guidelines regarding 'burden of proof' in discrimination cases.

This means, if your employees allege unfair discrimination on a ground of race, gender, pregnancy, marital status, family responsibility, ethnic, social origin, colour, belief, political opinion, culture, language and birth, you (the employer) must prove, on a balance of probabilities, that:

  • The discrimination didn't take place as alleged; or
  • Is rational and not unfair, or is otherwise justifiable.

So what happens when unfair discrimination is on an arbitrary ground?

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What you need to know about the 26 new Employment Equity amendments to comply from 01 August 2014

The new EE amendments will affects dozens of other work areas you may think EE doesn't effect.

But today, I want to hand you the one checklist that'll ensure you're complying with each and every one of them.


According to the amended EE Act, the following must happen when an employee accuses you of discrimination on an arbitrary ground…

In cases where the complainant accuses you of unfair discrimination on an arbitrary ground, he must prove on the balance of probabilities, that:

  • The conduct he's complaining of isn't rational;
  • The conduct amounts to discrimination; and
  • The discrimination is unfair.

Kowalik says this amendment places a burden of proof on the complainant, which wasn't clear in the original Act. And hopes this will 'bring an end to every second employee claiming 'discrimination' when they don't get their way in the workplace.'

There you have it: Things are a bit different now when it comes to discrimination cases. We hope knowing this information will make it easier to handle discrimination cases now that you know all about the 'burden of proof' requirement.

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