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Is there such a thing as fair discrimination?

by , 28 February 2014
The issue of discrimination in the workplace is complex. And one of the issues many employers struggle is: Can discrimination be justified? Read on to find out what the Employment Equity Act says about this.

When is discrimination in the workplace justified?

Before we get to whether discrimination in the workplace justified or not, let's define discrimination.

Mind Tools says discrimination is loosely described as unfavorable treatment of someone based on a certain general characteristic or perceived difference. Discrimination can take place based on race, gender, sexual orientation, marital status, ethnicity, religion, health or disability, a belief or creed, or pregnancy.

But can discrimination be fair?

The short answer is 'yes'.

In this article, we explain that fair discrimination is when criteria is based on the requirements for the position.

'This includes affirmative action, inherent requirements of the job (for example, a blind person can't be a pilot) or discrimination made compulsory by law (for example, you can't employ a child younger than15 years old).'

Important: These are the ONLY instances where you can discriminate and not get into trouble.

The South African Constitution guarantees the right to equality and also gives protection to all from unfair discrimination. It goes further by acknowledging that affirmative action measures are necessary to advance disadvantaged groups, says My Wage.

The Employment Equity Act (EE Act) is also very clear as it prohibits discrimination in the workplace.

In fact, it urges you to achieve equity in your workplace by not discriminating and by implementing Affirmative Action (AA).

To make sure you're in line with the constitution and the EE Act, don't discriminate employees and even job applicants based on these grounds:
  • Race;
  • Gender;
  • Sex;
  • Pregnancy;
  • Marital status;
  • Ethnic or social origin;
  • Colour;
  • Sexual orientation;
  • Age;
  • Disability;
  • Religion;
  • Conscience;
  • Belief;
  • Culture;
  • Language; and
  • Birth.

Now that you know when discrimination is fair, make sure you comply.

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