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What does the new Employment Equity Act say about the 'burden of proof' requirement in discrimination cases?

by , 14 March 2014
In July last year, the Department of Labour (DoL) released a statement saying the CCMA has seen a 25% rise in the case workload over the past five years. The majority of the cases the received relate to unfair dismissals and unfair labour practices. As you know, 'unfair labour practices' include discrimination in the workplace. The good news is the new Employment Equity Act (EE Act) now gives more clarity when it comes to discrimination cases. This will hopefully help ensure you avoid being taken to the CCMA by employees. Here's what the new EE Act amendments say about burden of proof in discrimination cases.

The new Employment Equity Act gives clear guidelines on 'burden of proof' in discrimination cases

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

The Act states: If unfair discrimination is alleged on a ground of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture, language and birth, the employer against whom the allegation is made, 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


The Act goes on to say that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on the balance of probabilities, that:
 

  • The conduct complained of isn't rational;
  • The conduct complained of amounts to discrimination; and
  • The discrimination is unfair

 

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Why is this amendment regarding the 'burden of proof' in discrimination cases significant?

This amendment places a burden of proof on the complainant (your employee), which wasn't explicitly stated in the original Act.

'With these guidelines, we should see a reduction in discrimination cases as an employee or job applicant would now need to prove that the conduct complained about is not rational, is in fact discrimination and that it is unfair,' adds the site.

We hope that this change will bring an end to every second employee claiming 'discrimination' when they don't get their way in the workplace. That said, remember that discrimination is unlawful.

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