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The discrimination lesson you can learn from the SAPS's court case against Renate Barnard

by , 04 September 2014
On Tuesday, trade union Solidarity lost its legal battle in the Constitutional Court over affirmative action in the SA Police Service (SAPS). The case, which has dragged on for nine years, involves Colonel Renate Barnard. It's believed the SAPS overlooked Barnard twice for a promotion because she's white.

But the court found that the process the SAPS applied didn't discriminate against her because the police had a valid employment equity plan.

But does that mean you can use discrimination as part of your recruitment?

Read on to find out...

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Yes, you can apply discrimination as part of your recruitment plan

Discrimination is generally against the law. In fact, the Employment Equity Act (EEA) is against it.

But, the Labour Law for Managers Loose Leaf Service says in some cases, you can successfully defend the decision not to employ someone or discriminate on the grounds that you want to promote affirmative action.

For example, if the disgruntled applicant is white and you rejected him 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 employers (at least those 'designated' under the Act) to implement affirmative action measures.

Basically, a discriminatory appointment you make to promote equal opportunity in the workplace may not be discriminatory at all. This is because the intention is to correct past discrimination.

This is why the SAPS were vindicated by the courts in their decision not to hire Barnard.

Just bear in mind that you can only discriminate when recruiting if you have a clear affirmative action policy and an Employment Equity Plan.

We hope this explanation has made it clear how you can use discrimination to achieve the goals of your affirmative action policy.

Find out how to implement the new EE Act changes here.

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